The Government Legal Service v Brookes [2017] UKEAT/0302/16/RN, EAT

31 May 2017

There was no error of law in an Employment Tribunal decision that an applicant, who had Asperger’s syndrome, was discriminated against by being required to undergo psychometric testing in a competitive recruitment process. It was open to the Tribunal to conclude that the respondent had indirectly discriminated against the claimant, had failed to comply with the duty to make reasonable adjustments and had treated her unfavourably because of something arising in consequence of her disability.

The Governing Body of Story Wood School and Children’s Centre v Jones [2013] UKEAT /0522/12/JOJ

13 June 2014

An unfair constructive dismissal occurs if an employer commits a fundamental breach of contract, as a result of which the employee resigns. A constructive dismissal claim may be based on the employer’s breach of a written term of the contract, such as salary, sick pay or working hours; or an implied term, in particular the implied term of mutual trust and confidence. Employees must have trust and confidence in their management by the employer just as employers require trust and confidence in their employees at work.

In this case, a teacher claimed that the conduct towards her by her Head and deputy had destroyed her trust and confidence and made it impossible for her to stay in post.

Tansell v Henley College Coventry [2012] UKEAT/0238/12/KN

3 September 2013

The expiry of a fixed-term contract without it being renewed or the employee being re-engaged is a dismissal. The employer must, therefore, show a fair reason for dismissal and have acted reasonably in all the circumstances.

Redundancy is a potentially fair reason for dismissal as is “some other substantial reason”. In this case, the claimant was employed under fixed-term contracts and he alleged, amongst other claims, that his dismissal at the end of one contract was on account of his whistleblowing.

The Governing Body of Tubbenden Primary School v Sylvester [2012] UKEAT /0527/11

4 September 2012

In unfair dismissal cases, the employer has to show a potentially fair reason for dismissal. The Employment Rights Act 1996 s. 98(4) states that once an employer has established a potentially fair reason for dismissal, the question of whether the dismissal is fair or unfair depends on whether in all the circumstances of the case the employer acted reasonably or unreasonably. This question is determined “in accordance with equity and the substantial merits of the case”.

One of the potentially fair reasons for dismissal is some other substantial reason (SOSR), of such a kind that justifies dismissal. Such a reason could be a business re-organisation that does not result in redundancies, the expiry of a fixed-term contract, or a decision on the part of the employer to protect his or her business interests. In this case, the tribunal examined the fairness of a dismissal where the school said the SOSR was the Head's loss of trust and confidence in one of his deputies. This was not the result of gross misconduct but of an alleged lack of judgment.

The Governing Body of Beechview School (1) Buckingham County Council (2) v Griffin [2011] UKEEAT/0162/11/ZT

2 May 2012

Misconduct is a justifiable reason for dismissal and in such cases tribunals apply this three-step test.

  • Did the employer have a genuine belief on reasonable grounds that the employee was guilty of the misconduct in question?

  • Did the employer carry out as much investigation as was reasonable?

  • Was the sanction a fair one?

In addition, the employer should have followed a fair disciplinary procedure up to the point of dismissal and any appeal.

If a tribunal decides that a dismissal is unfair because of a procedural error by the employer, it applies the "Polkey test”:

  • What difference would it have made if the employer had followed a fair procedure?

  • Would the outcome have been the same?

The Polkey test is particularly important in redundancy and misconduct cases. Depending on the answer to the first question, tribunals can reduce any compensation award by a percentage figure, reflecting the likelihood that the outcome would have been the same. The reduction can be up to 100%.

In this case, the unfair dismissal ruling was based on procedural fairness, which brought a Polkey deduction into play.

The Governing Body of Wishmorecross School v Balado [2011] UKEAT/0199/11/CEA

6 February 2012

Dismissal is with notice unless it is summary dismissal for gross misconduct when no notice is given. An employment tribunal claim for unfair dismissal has to be lodged with the tribunal within three months of what the legislation calls the “effective date of termination”. There have been numerous cases dealing with whether the claimant had lodged the unfair dismissal within the time limit. If there is a dismissal with notice, a tribunal application can be made after notice has been given and before the effective date of termination. Apart from this exception, though, a tribunal has no jurisdiction to receive a claim presented before the effective date of termination.

In this case, the teacher was suspended then dismissed for gross misconduct, subject to a right of appeal on the basis that the suspension would continue if she did appeal. She did appeal and then lodged an unfair dismissal claim before the appeal was heard. The issue was whether the tribunal application was too early and could not be heard.