How Does the Employment Tribunal Consider a Claim for Unfair Dismissal?
In the recent case of Rodgers v Leeds Laser Cutting Ltd, one of the first relating to COVID-19 to reach the employment tribunal (ET), the tribunal was asked to consider whether it was ‘automatically’ unfair to dismiss a worker because he didn’t want to go to work due to his concern of catching COVID-19. Mr Rodgers was worried that by going to work as a laser cutter in a large warehouse, he may put his newborn child and his other child with sickle-cell anaemia at risk.
One month after advising his employer he would not be returning until lockdown was eased, he was dismissed. His employer argued that measures had been put in place to reduce the potential spread of the virus. While the ET accepted Mr Rodgers had genuine concerns, they did not accept this was objectively reasonable. The claim was dismissed, with Judge Anderson stating, “I cannot conclude that the decision to absent himself, regardless of what the situation might be at the workplace until a national change was made, can lie at the door of the Respondent”. We expect many more such claims to arise in the coming months. So exactly how does the employment tribunal determine whether dismissal is fair or unfair?
What is meant by unfair dismissal?
After a period of working for an employer (the qualifying period), an employee has the right not to be dismissed unfairly.;Where someone is judged to have been unfairly dismissed, the ET may grant interim relief, a reinstatement/re-engagement order, a basic award, and/or a compensatory award.;When assessing a claim, the ET will look at two main aspects; 1) whether the employer had a fair reason for the dismissal and 2) whether the employer acted reasonably.
What are the fair reasons for dismissal?
In accordance with the Employment Rights Act, 1996 (ERA 1996), dismissal is assessed as unfair unless one of five fair reasons for dismissal applies; these are:
• Lack of capability or qualifications
• Misconduct (one serious incident or several smaller ones)
• Statutory restriction – if continuing to employ the person would have meant the business would contravene the law
• Some other substantial reason
The test for reasonableness
A business may be considered by a tribunal to have dismissed an employee fairly if they acted reasonably in dismissing the employee. According to Section 98(4) of ERA 1996:
“if there is a fair reason for dismissal, the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case”.
To test for reasonableness, the ET will ask two questions:
Question 1) Did the employer follow a fair procedure? A fair procedure is one such as the ACAS Code of Practice on disciplinary and grievance procedures.
Question 2) Did the employer act reasonably in treating the reason as sufficient for dismissal? To answer this question, the ET will consider whether the employer’s decision to dismiss the employee fell within the range of reasonable responses that a reasonable employer in those circumstances might have adopted.
In addition to the above test, the ET will also take into account a range of factors such as whether:
the employee knew what was required of them.
the employer took steps to minimise the risk of poor performance.
there was a proper appraisal of the employee, and the problem was identified.
the employer-provided training, supervision and encouragement.
the employer warned the employee of the consequences of failing to improve.
the employer gave the employee a chance to improve.
the employer considered alternative employment.
In the above case of Rodgers v Leeds Laser Cutting Ltd, the employer had put in place measures to limit the potential spread of COVID-19 by implementing hand cleaning stations and social distancing measures, and the claimant had been made aware of these.
What is meant by automatically unfair dismissal?
There are several reasons for dismissal that are deemed automatically unfair, even if the employee has not completed the qualifying period; these include dismissal relating to pregnancy, whistleblowing, working time, and health and safety. Likewise, there are reasons for dismissal which are automatically unfair, but the employee must have completed their qualifying period, including where it relates to spent convictions and TUPE transfers.
It is important to note that where an ex-employee is deemed to have been dismissed for certain automatically unfair reasons, they may be able to (in very limited situations) submit an order for interim relief (i.e. financial compensation) pending the full hearing. This includes cases of dismissal for whistleblowing.