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What is a dismissal?
[ch 10: pages 329-330]The first question in any unfair dismissal claim is often whether there has been a dismissal at all. There will be a dismissal if:
• the employer ends the employment contract, with or without notice;
• the employer does not renew a fixed-term contract (see page 334);
• the employee resigns in response to a fundamental (that is, very serious) breach by the employer of the employment contract, known as constructive dismissal — see page 334;
• the employee resigns in response to an unambiguous ultimatum: “resign or you will be sacked!” (see below: Resignation);
• the employer unilaterally imposes fundamentally different contract terms, effectively withdrawing the old contract — see below;
• the employee is dismissed as redundant (see Chapter 11);
• the employee is not allowed to return to work after taking maternity, adoption, paternity or shared parental leave (see Chapter 9);
• on a business transfer or a change of service provider covered by TUPE, the transferee refuses to take on the transferring workforce (see Chapter 12); or
• the employee resigns because of a serious detrimental change to their working conditions resulting from a business transfer or service provision change covered by TUPE (see Chapter 12).
Sometimes the employer gives notice to end the contract while at the same time offering a new contract containing different (usually less favourable) terms. This is also a dismissal — see page 353.
There can also be a dismissal under section 95(1)(a), ERA 96 where an employer unilaterally imposes fundamental changes to an existing contract. For example:
Mr Hogg, a teacher, was demoted from his post as head of department, put onto part-time hours and had his salary halved. The EAT ruled that he had been dismissed and re-employed on “wholly different terms” which amounted to an entirely different contract. He was able to bring a claim for unfair dismissal.
Hogg v Dover College [1990] ICR 39
An employer fundamentally changed a shift system, resulting in different hours of work, including weekend and bank holiday working, cutting the amount of overtime payments, shift premiums and start-up payments received by employees, and limiting their choice of holidays. The employees continued to work under protest and brought claims of unfair dismissal. The EAT held that the contract terms under the new system were so radically different that the employees had been dismissed from one contract and re-employed on another. They were entitled to claim unfair dismissal.
Alcan Extrusions v Yates and others [1996] IRLR 327
Employees are not allowed to agree in advance that particular events (such as not returning to work on an agreed date following a long break), will end the contract automatically. Any other conclusion would allow employers to circumvent the tribunal’s statutory jurisdiction to decide whether a dismissal is fair or unfair (Igbo v Johnson Matthey Chemicals Ltd [1986] IRLR 215).
A dismissal cannot take effect until it has been communicated to the employee, whether by words or actions. A dismissal can sometimes be implied by the employer’s behaviour, but a simple failure to make contact with an employee is not enough to imply a dismissal (Sandle v Adecco UK Limited [2016] UKEAT/0028/16/JOJ).