Unfair Dismissal Problem Question

This question would be regarding on the areas of unfair dismissal, wrongful dismissal and whether Carmen could bring a claim under Employment Tribunal(ET) for her dismissals.

Firstly, Carmen would need to fulfil the qualifications under ACAS to bring a claim. Carmen would need to proof that she is the employee of the hospital and had worked for the same employer for at least 2 years after 6th of April 2012. On the facts, she is a nurse who work in Mount Vernon Hospital, Wimbledon, London for the past 11 years. Next, she would then need to prove that she has ordinarily working within United Kingdom(UK) as per the case of Ravat v Halliburton Manufacturing and Services Ltd [1]. On the facts, she had worked in London which it is clearly within UK. Then she would then need to prove that she was not employed on an illegal contract and not under the exclusion of class which is the armed forces. On the facts, it is clear that she is employed lawfully as a nurse and she was not in the excluded class.

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Furthermore, she has the burden of proof to prove that she had been dismissed under s.95 of Employment Rights Act 1996 (ERA).[2] On the facts, she had been summarily dismissed which is dismissal without notice as she was alleged to be breach in contract due to her drunkenness in work. Moreover, she would need to bring the claim by submitting a form of ET1 for her unfair dismissal claim to the Employment Tribunal nearest to her employer in 3 months from the effective date of termination of the employment contract. However, Carmen would also need to send her employer and her contact details to the The Advisory, Conciliation and Arbitration Service(ACAS) as they will attempt to conciliate within one month under s.7 of the Enterprise and Regulatory Reform Act 2013(ERRA) which came into force in April 2014. If it fails, then the officer will issue a certificate to this effect and Carmen would need this certificate to file the ET1 form. On the facts, the effective date of termination for Carmen would be the date of she received the summary dismissal letter as per s.97(1) of ERA.

However, the employer would have a defence if the reasonableness for the dismissal could be justified. The burden of proof would then shift to the employer. The Mount Vernon Hospital would need to prove that they had honestly believe that the facts disclosed a fair reason at the time of dismissal of Carmen and there is no need for a positive proof that the offence has been committed as per Devis & Sons Ltd v Atkins [3]. However, an evidence would be considered if it relates directly to the reason for the dismissal. There could be more than one reason but if one of the reasons cannot be substantiated, the employers’ defence would fail even if the other reasons are valid as per Smith v City of Glasgow DC [4]. On the facts, the Mount Vernon Hospital would argue that Carmen’s dismissal was due to her drunkenness at work which was witnessed by Kelly where she smells alcohol in Carmen’s breath and her speech was slurred.

Thus, the test laid in the case British Home Stores v Burchell [5] would be discussed to determine the reasonableness for Carmen’s dismissal as it was a misconduct dismissal. It is a 3 steps test which includes whether the employer reasonable belief the misconduct, whether it is based on reasonable grounds and whether a reasonable investigation that has been carried out.

Firstly, in Salford Royal NHS Foundation Trust v Roldan [6] where it follow the test laid down in Burchell, it was held that the proof of misconduct would not need to be irrefutable. On the facts, it could be argued that the Mount Vernon Hospital had reasonably belief that Carmen was drunk in her work as the proof was that the Kelly had witnessed the incident. Then, the Mount Vernon Hospital would need to show that the belief was based on a reasonable ground. On the facts, it could be argued that it was based on the fair ground of Carmen’s misconduct under s.98 of ERA 1996. Next, the employer would need to carry out reasonable investigation on the established facts as per Stuart v London City Airport [7]. However, on the facts, it was unclear whether there is a reasonable investigation for Carmen’s misconduct. An investigation is also required to be carried on employee’s defences as per Shrestha v Genesis Housing Association [8]. On the facts, it could be argued that the investigation was not clear enough as the Mount Vernon Hospital did not investigate the explanation provided by Carmen herself. Furthermore, Carmen had explained about her alcohol breath was due to the non-alcoholic wine and the slurred speech was due to the tiredness of working 12 hours for the past 5 days. However, this point was not taken by the Mount Vernon Hospital and they decided to just plainly believe the words of Kelly.

The Code of Practice states that the employer should informed the employee formally in writing when there is a disciplinary matter and the employer should hold a meeting to discuss the matter as an employee is entitled for a fair hearing as per the case of Clark v Civil Aviation Authority [9]. Moreover, Carmen should also be informed that disciplinary action is being considered and the reasons for it as per Alexander v Bridgen Enterprises Ltd [10]On the facts, Carmen only received an invitation for a disciplinary meeting on but the reason of the meeting was not stated in the email. Even though the invitation was sent through an email, it would still be regarded as a form of ‘in writing’ as per Wang v University of Keele [11]. Furthermore, the meeting should be held as soon as possible but there must be a sufficient time given to the employee to prepare his case. On the facts, it could be argued that there is not enough time given for Carmen as the meeting was held on the next day after the incident.

Other than that, the Mount Vernon Hospital must also allow Carmen to be accompanied by a companion to attend the meeting as per s.10 of Employment Relations Act 1999 and Stevens v University of Birmingham [12]. However, it was unclear whether that she was accompanied by someone to the meeting on the facts. Next, employee should be informed of the decision in writing and be informed of the opportunity of to appeal. On the facts, Carmen was informed of the decision by a letter and was informed of an opportunity of appeal. However, on the facts, Carmen thought that it was not worth appealing.

The tribunal is also required to direct itself using the terms set out in s.98(4) of ERA 1996 which requires it to only consider the reasonableness of the employer’s conduct and not fairness to the employee. The tribunal would need to determine whether did the employer utilise a fair procedure and an employer is expected to observe a fair procedure open to a reasonable employer as per Polkey v Dayton Services Ltd [13]. A fair procedure guidance could be found in ACAS Code of Practice on Discipline & Grievance 2015 [14]. This test has been laid down by Lord Browne Wilkinson in Iceland Frozen Foods v Jones [15] which was also confirmed by P.O. v Foley [16].

Moreover, the tribunal would need to determine whether a reasonable employer might have adopted the same approach and reach to the same decision. The tribunal must not answer this question by substituting themselves for the employer. The substitution happens when the tribunal decide what would they have done if they were the employer. This approach has also been confirmed in Sainsbury’s Supermarkets Ltd v Hitt [17] where it was held that the test also question that whether the employer’s investigation into the suspected misconduct was a reasonable one in the circumstances. This test would still comply with the Article 8 of European Convention of Human Rights(ECHR) even though personal privacy might be invaded during the investigation as the traditional band of the test itself was compatible with the Article 8 in the case of Turner v East Midlands Trains [18]. On the facts, the investigation was not held thoroughly as stated above.

Other than that, under s.98(4) of ERA 1996, it requires the employer to consider the merits or equity of the case. The employer would need to consider the employee’s length of service as per Strouthos v London Underground [19]. On the facts, the Mount Vernon Hospital clearly did not consider these factors of Carmen as she still has been dismissed even though she had worked in the hospital in the past 11 years and had a very good performance in her work. Furthermore, the Mount Vernon Hospital should also consider that whether the employee had acted consistently and whether is there a better alternative disciplinary action. On the facts, Carmen had a clean disciplinary record and there is no other similar incident happened after her misconduct. Hence, it could be submitted that Carmen had acted consistently as she had a good performance for the past 11 years as stated above but this was not considered by the Mount Vernon Hospital. Furthermore, it was held that in Diary Produce Packers Ltd v Beverstock [20] and Taylor v Alidair [21] that first offences of misconduct have to be very serious to justify the dismissal. On the facts, the Mount Vernon Hospital should have given a warning for her action instead of a dismissal as a better alternative. This is due to the severity of the reason of the dismissal, Carmen may not be employed by other employer in the future and this would affect her career.

Other than that, Carmen may bring a claim under wrongful dismissal. A dismissal in breach of contract without notice or insufficient notice would be a wrongful dismissal. Wrongful dismissal is governed by common law action for breach of contract. It would be a wrongful dismissal if there is none or the notice period provided by the employer to employee is less than the minimum notice period under s.86 of ERA 1996. On the facts, a notice for Carmen’s dismissal was given by the Mount Vernon Hospital. However, the notice was given was less than the minimum notice period required. Hence, since Carmen had worked for the hospital for 11 years where she met the requirement of two years’ continuity, she would be entitled to 11 weeks with a maximum of 12 weeks of notice period.

However, the Mount Vernon Hospital may argue that it was a summary dismissal as the is a ‘repudiatory’ breach of contract by the Carmen. On the facts, it would be the gross act of misconduct where she was accused for being drunk during work. Hence, the Mount Vernon Hospital is entitled to dismiss her without any notice as they could argue that a serious act of negligence had been committed by Carmen which is being drunk during working time as per the case of Pepper v Webb [22]. However, Carmen would then argue that it was an alleged misconduct as she was not drunk at all as stated on the facts. Hence, if the ET held that there is no gross misconduct committed by Carmen or the misconduct was not so bad to be considered as ‘gross’, the Mount Vernon Hospital would then be held to be wrongfully dismissed Carmen as the notice given were less than statutory minimum notice period.

In conclusion, in relation to the unfair dismissal claim, Carmen would be eligible to make a claim to ET. As stated above, it could be submitted that the Mount Vernon Hospital had unfairly dismissed Carmen due to the following reasons. Firstly, the Mount Vernon Hospital had failed to provide a fair procedure for the dismissal by failing to conduct a proper investigation and failed to give sufficient time for Carmen to prepare her case. Moreover, as stated above, the Mount Vernon Hospital would also fail the band of reasonable response test and failed to consider the merit and equity of the case under s.98(4) of 1996. The remedies available for Carmen in this issue would be reinstatement, reengagement, compensation of basic award, and compensatory award. On the facts, the maximum basic award of compensation that Carmen could claim would be £5269 and it would be another 25% raise of the award due to the failure to follow the ACAS Code of Practice by the hospital. Other than that, she could also claim for a maximum compensatory award of £78,962. However, the requirements for this which laid down in Norton Tool Co Ltd v Tewson [23] would be harder to be fulfilled by Carmen.

Lastly, Carmen could also bring a claim under wrongful dismissal as there was an insufficient of notice period for her dismissal. The remedy available for Carmen for this issue would be to claim for a compensation with a maximum award of £25,000 by bringing an action to employment tribunals for breach of contract. As stated above, a wrongful dismissal would be a breach of contract.

[1] Ravat v Halliburton Manufacturing and Services Ltd [2012] UKSC 1

[2] Employment Rights Act 1996, s.95

[3] Devis & Sons Ltd v Atkins [1977] AC 931

[4] Smith v City of Glasgow DC [1987] IRLR 326

[5] British Home Stores v Burchell [1978] IRLR 379

[6] Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522

[7] Stuart v London City Airport Ltd [2013] EWCA Civ 973

[8] Shrestha v Genesis Housing Association [2015] EWCA Civ 94

[9] Clark v Civil Aviation Authority [1991] IRLR 412

[10] Alexander v Bridgen Enterprises Ltd [2006] UKEAT 0107_06_1204

[11] Wang v University of Keele [2011] IRLR 542

[12] Stevens v University of Birmingham [2015] EWHC 2300 (QB)

[13] Polkey v Dayton Services Ltd [1987] AC 344

[14] ACAS, http://www.acas.org.uk/media/pdf/d/r/Discipline-and-grievances-Acas-guide.PDF , ‘Discipline and grievances at work’, accessed on 28 February 2017

[15] Iceland Frozen Foods v Jones [1982] ICR 17

[16] P.O. v Foley [2000] EWCA Civ 3030

[17] Sainsbury’s Supermarkets Ltd v Hitt [2003] EWCA Civ 1588

[18] Turner v East Midlands Trains [2012] EWCA Civ 1470

[19] Strouthous v London Underground [2004] EWCA Civ 402

[20] Diary Produce Packers ltd v Beverstock [1981] IRLR 265

[21] Taylor v Alidair [1978] IRLR 82 CA

[22] Pepper v Webb [1969] 1 WLR 514

[23] Norton Tool Co Ltd v Tewson [1973] 1 All ER 183