Unfair dismissal
In Capita Health Solutions v McLean and another [2008] IRLR 595, the EAT held that an employee's objection to becoming employed by the transferee did not have the effect of preventing the transfer of her contract of employment, as she had undertaken work for the transferee after the transfer date.
In Kuzel v Roche Products Ltd [2008] IRLR 530, the Court of Appeal held that, having rejected the potentially fair reason for dismissal put forward by the employer, the tribunal was not obliged to accept the automatically unfair reason put forward by the employee. It was entitled to find that the employer had at least proved that this was not the reason for dismissal.
In Stevenson v JM Skinner & Co EAT/0584/07, the EAT held that an employer complied with its statutory duty to carry out a risk assessment in relation to a pregnant employee when it addressed her concerns at meetings with her and, taking account of all the circumstances, evaluated and agreed the relevant risks.
In Airbus UK Ltd v Webb [2008] IRLR 309, the Court of Appeal held that Diosynth Ltd v Thomson did not establish a rule of law that spent warnings must be ignored for all purposes. On the facts, where a spent warning was not part of the reason for the dismissal, but the basis for the employer's refusal to exercise leniency in respect of later gross misconduct, neither Diosynth nor the wording of s.98 of the Employment Rights Act 1996 rendered the dismissal necessarily unfair.
In Ralph Martindale & Co Ltd v Harris EAT/0166/07, the EAT held that a redundancy dismissal was unfair where the process for deciding who should be offered an alternative post involved no objective criteria and no attempt to assess the candidates against a job description. It was unfair for the employer to rely mainly on a subjective assessment of whose management style would best suit the new post.
In Davies v Farnborough College of Technology [2008] IRLR 14, the EAT held that a dismissal that involved a breach of step two of the statutory dismissal and disciplinary procedure was automatically unfair, even though a full and proper appeal had been heard. The tribunal was wrong to find that the appeal "cured" the defect in the original hearing. However, it was clear that a dismissal would have occurred even if the procedure had been properly followed, so the compensatory award was set at zero.
In Atkins v Coyle Personnel plc EAT/0206/07, the EAT held that, for an employee to claim successfully that his dismissal was related to the fact that he had taken paternity leave, there must be a causal link between the dismissal and the leave.
This article looks at some of the important judgments in the area of the transfer of undertakings over the past year.
In Shaw v CCL Ltd EAT/0512/06, the EAT held that an employee whose request to work part time on her return from maternity leave was refused had been constructively unfairly dismissed.
In Klusova v London Borough of Hounslow [2007] EWCA Civ 1127, the Court of Appeal upheld a finding of unfair dismissal in the case of an employee who was dismissed on the grounds that she was no longer entitled to work in the UK. There was evidence to support the tribunal's finding that the employee was, in fact, legally entitled to work in the UK at the time of her dismissal. While the employer's mistaken belief about her immigration status was capable of amounting to "some other substantial reason" for dismissal, the fact that the employer had failed to follow the statutory dismissal procedure rendered the dismissal automatically unfair.
HR and legal information and guidance relating to unfair dismissal.