Jason may have been dismissed in an unfair and
wrongful manner by the managing director, Lizzie. Jason may be able to make a
claim under unfair dismissal (“UD”), wrongful dismissal (“WD”) and redundancy.
The Employment Rights
Act 1996 (“ERA”) provides
a statutory right for an employee not to be unfairly dismissed.1
UD applies when an employee has been dismissed for an unfair reason or, a fair
reason but the employer has acted unfairly in the manner of the dismissal. This
right applies to those who are in employment and have been in continuous
service for two years.2
As Jason is employed by JEL, and has been working there for ten years, he
satisfies the initial requirements. Jason must be able to prove that he has
been dismissed, although it is clear from the scenario that he has been
The dismissal will be unfair unless the employer
can demonstrate that the reason for the dismissal was fair. There are several
fair reasons for dismissal, for example; conduct, capability and qualifications,
redundancy, illegality or another substantial reason.4
If Lizzie can prove that she dismissed Jason for one of these reasons, then
Jason may be able to claim that the manner in which Lizzie dismissed him was
Express terms need to be adhered to by both the
employee and the employer. However, the implied term of trust and confidence
may restrict the clauses, if they are unreasonable. The test for considering
mobility clauses is a factual matter. In High
Table v Horst, it was held that just because a mobility clause existed,
it did not mean it extended to every place where the employee could work, if in
reality they worked in one place.5
In United Bank v Akhtar a
clause in the contract expressly stated that the business required the employee
to work anywhere in Great Britain. However, the employee was given unreasonable
notice, and therefore successfully claimed UD.6
Provided that the handbook has been incorporated into Jason’s contract, the
clause requiring employees to ‘adapt to
business needs’ is very wide and could potentially include any location.
However, Lizzie may argue that his current job is redundant and the business
requires him to re-locate. This may be unreasonable given the amount of notice
he has been given due to the distance of the new location.
Redundancy is a potentially fair reason for
dismissal. If Lizzie argues that Jason’s job is redundant, as he will not
re-locate, then he may be entitled to a redundancy award. An employee is
permitted to bring a claim if they feel their redundancy is unfair. Redundancy
rights apply to employees who have been in continuous employment for at least
Although redundancy is a potentially fair reason for dismissal, it must be
reasonable in order for the procedure to be fair. A claim for redundancy must
be brought within three months of the effective termination date. Although the
redundancy awards are minimal, an employee may be entitled to a compensatory
award under UD too. Jason has one month remaining to make a claim and his
redundancy may make him eligible, for a maximum statutory redundancy award of
£489 per week.
The employment tribunal (“ET”) will not consider
a claim unless the claim is brought within three months of the effective
Therefore, Jason needs to be aware that he is running out of time to present
his case to the ET, as it has already been two months.
Jason may also have a claim for WD. WD occurs when
an employee is dismissed in breach of their contract. Claims for WD fall within
the common law and must be made within six years of the dismissal. WD may apply
where an employee was not given an express or implied notice period. The employer
would be liable to pay damages to put the employee in the position that he
would have been in, if a notice period had been adhered to. Lizzie should have
incorporated a notice period into the contract. As Lizzie failed to comply with
the Advisory, Conciliation and Arbitration Service (“ACAS”) for implementing a
notice period, the ET will take this into account and may increase the compensatory
award by up to 25%.9
If an employee’s contract is terminated by the
employer without notice, and the contact does not have an express notice period,
the employee will be entitled to an implied minimum statutory notice period. As
Jason has been employed by JEL for ten years, he will be entitled to minimum
statutory notice period of ten weeks.10
As this has not been complied with, JEL will need to compensate him ten weeks’
Termination without notice is referred to as
summary dismissal, and occurs when an offence of gross misconduct has been
committed by the employee. An employee’s disobedience may be a reason for a
summary dismissal. However, all misconduct should be treated with a warning
prior to the dismissal. In Grundy v
Willis it was held that the test was about whether the employer acted
reasonably, not whether the ‘ET agreed
with what the employer did’.11
In Iceland v Jones it was held
that would be up to the ET to conclude whether the employer acted reasonably,
dependant on the facts of the case.12
In Laws v London Chronicle it
was decided that an act of disobedience may justify a dismissal as it suggests
a deliberate disregard of the contractual terms.13
Lizzie may argue that Jason was disobedient in his conduct and subsequently
contributed to his dismissal.14
On the other hand, it is not permissible to reduce the basic award based on the
contributed conduct, if redundancy was the reason for the dismissal. However,
this will still not justify the immediate termination as it is a lesser offence
which requires an initial warning. This would be a matter for the ET to decide
whether Lizzie had acted in a way that a reasonable employer would have done,15
the reason for the dismissal would be irrelevant when considering the fairness
of the dismissal.16
As Lizzie sacked Jason with immediate effect, this would be a breach of the
implied notice period, as Jason had not committed a serious offence. Jason’s
refusal to comply with the change in location can be viewed as reasonable due
to his mental condition. Therefore, it would be unfair to state that Jason was disobedient
to justify a summary dismissal.
The ET may take into account Jason’s mental
health problems. In Barber v Somerset
CC the employee was taking time out of work as he was suffering
depression. Upon his return to work, the employer had not taken steps to
improve the situation for the employee, but instead put more stress on him
which subsequently worsened his condition. It was held that a wise employer
would have helped to improve the situation, and therefore there was a breach of
the implied duty of care.17
Lizzie was aware of Jason’s mental state and altering his location of work,
could have contributed to worsening his depression. This shows that Lizzie did
not help to improve the working conditions for Jason.
Mutual trust and confidence (“MTC”) is an implied
term which has been developed by common law.18
In Morrow v Safeway Stores an
employee was severely told off in front of members of staff and customers. It
was held that this was a breach of MTC, amounting to a repudiatory breach.19
As Lizzie similarly shouted at Jason in front of other members of staff, a
breach of MTC may be found, and Jason may be compensated for this under WD.
Damages are minimal under WD. However, damages
include all benefits that the employee would have received, if the contract had
been performed correctly. In Addis v
Gramophone it was held that the absence of consensus about an express
term for a bonus, allows the courts to calculate the quantum of damages, which
shows what payment the employee would have received.20
As the express term for a bonus was in Jason’s contract, he may be awarded this
as a part of his damages, if the court can prove that Lizzie did not act in
accordance to the contact when dismissing Jason.
In conclusion, Jason has the ability to make a
claim under UD and WD, as he has evidently been dismissed by Lizzie, in an
unfair and wrongful manner. Jason satisfies the requirements for both UD and
WD. It may be argued that the clause in Jason’s contract regarding mobility,
was too wide. If Lizzie decides to argue that Jason contributed to his
dismissal by being disobedient, he can argue that he should have had an initial
warning prior to the dismissal. Lizzie has breached the implied term of MTC by shouting
at Jason, which would have damaged their relationship. Jason would need to be
aware that his time is running out as he has one month left to bring a claim
for UD. The ET will consider the case and decide upon the most appropriate
remedy, if Jason’s claims are successful.
Employment Rights Act 1996 s.94(1).
Employment Rights Act 1996 s.108(1).
Employment Rights Act 1996 s.95(1).
4 Employment Rights Act
1996 s.98 (2).
5 High Table Ltd v Horst
and Others 1997 I.R.L.R. 513.
6 United Bank v Akhtar
1989 I.R.L.R 507.
7 Employment Rights Act
Employment Rights Act s.111(2)(a).
9 ACAS, Code of Practice
1 – Code of Practice on Disciplinary and
Grievance Procedures (published March 2015).
10 Employment Rights Act
Grundy (Teddington) Ltd. v Willis 1973 I.R.L.R 100.
Iceland Frozen Foods Ltd. v Jones 1983 ICR 17,
1982 I.R.L.R. 439, EAT.
13 Laws v London
Chronicle 1959 1 WLR 698.
Employment Rights Act s.116(3)(c) and Nelson v British Broadcasting Corporation
(No. 2) 1980 ICR 110, 121 (Brandon LJ).
Employment Rights Act s.98(4).
Employment Rights Act s.98(1-3).
17 Barber v Somerset CC
2004 1 WLR.
18 Malik & Mahmud v
Bank of Credit and Commerce International (BCCI) 1998 AC 20.
19 Morrow v Safeway
Stores 2002 I.R.L.R 9.
20 Addis v Gramophone Co.
Ltd. 1090 AC 488.