Legal Updates

Employment Law – Actual and Constructive Unfair Dismissal

The case of Brock v Minerva Dental Ltd [2007], concerned the concepts of actual and constructive unfair dismissal. The employee in this case had been employed from 15 February 1994 until 28 September 2005, when without any prior notice, he was called to a disciplinary meeting with the employer’s equipment director, C. At that meeting, the employee was dismissed with notice expiring on 16 December. That dismissal was confirmed by letter dated 29 September, which also advised the employee of his right to an internal appeal.

The employee appealed by letter dated 5 October, alleging that his dismissal had been rendered automatically unfair by the employer’s failure to adhere to the statutory disciplinary procedures. On 26 October, the employer’s managing director wrote to the employee acknowledging that the statutory procedures had not been complied with, and purported to rescind the letter of dismissal. Also on the 26 October, C wrote to the employee calling him to an investigatory and a disciplinary meeting in relation to the matters set out in the letter from the managing director which was held on the 7 November.

On 28 October, the employee wrote to the employer’s personnel administrator informing her that he would not be fit to attend on 7 November, stating that he felt that the manner in which he had been treated by the employer had broken the relationship of trust and confidence. Subsequently, the employer wrote to the employee offering him three months’ salary as compensation for loss of employment. On 3 November, the employee’s solicitors wrote to the employer informing them that they could not unilaterally withdraw the termination of the employee’s employment, and that the further disciplinary proceedings proposed were pointless because the employee had already been dismissed. The letter concluded by stating that it constituted a complaint under the statutory disciplinary process.

The employer’s solicitors responded by a letter dated 22 November which stated that, by appealing, the employee had implicitly requested that the employer withdraw the notice of dismissal. It further acknowledged the employer’s duty to meet with the employee in relation to the complaints raised in the letter of 3 November. The employee’s contract then terminated, and on 23 December he presented a claim before the employment tribunal alleging that the dismissal on 28 September had been automatically unfair.

The employer contested the claim on the basis that the dismissal complained of had effectively been withdrawn by the employee’s appeal. A pre-hearing review was scheduled for 27 March 2006. On 24 March, the employee applied to amend his claim by adding an alternative plea that if he had not been actually dismissed, he had been constructively dismissed.

Subsequently, at the pre-hearing review, the employee’s actual dismissal claim was struck-out on the ground that the dismissal on 28 September 2005 had been effectively rescinded by the employee’s internal appeal. Furthermore, the tribunal refused the employee’s amendment to his application on the grounds that the statutory time-limit for the presentation of a constructive claim had expired, and that the employer would have been severely prejudiced were the amendment to be allowed. The employee appealed to the Employment Appeals Tribunal (“EAT”) against this decision.

Two issues fell to be determined by the EAT, namely:

§   Whether the tribunal had erred in finding that the dismissal of 28 September had effectively been withdrawn; and

§   Whether the tribunal had erred in refusing to allow the employee’s amendment to his application.

The EAT ruled as follows:

§             It was settled law that once notice of dismissal had been given, it could not be unilaterally withdrawn. In this case, by activating the employer’s internal appeal procedure by his letter dated 5 October 2005, the employee had consented, expressly or impliedly, to the employer’s withdrawal of the dismissal notice. In such circumstances the tribunal had been right to strike-out the employee’s claim for unfair actual dismissal on the basis that he was never dismissed.

§             In relation to the employee’s amendment to his application, the tribunal had erred in finding that the statutory time-limit had expired. It was clear from the correspondence between the parties that the employee had effectively raised a grievance within the meaning of the statutory grievance procedure. By engaging the grievance procedure, the time limit for the presentation of the employee’s claim had been extended by a further three months under regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004.

§             Furthermore, in conducting the respective hardship test, the tribunal had failed to consider the hardship to the employee of being unable to pursue his claim of unfair dismissal at all if the amendment was refused.

In those circumstances, the appeal against the tribunal’s refusal to allow the employee’s amendment would be allowed and accordingly the amendment would be allowed. The employee’s claim for constructive unfair dismissal would be remitted to a differently constituted tribunal for determination.

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© RT COOPERS, 2007. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight




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