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What is a dismissal?
[ch 10: page 310]The first question in any unfair dismissal claim is often whether there has been a dismissal at all. There will be a dismissal where:
• the employer ends the employment contract, with or without notice;
• the employer does not renew a fixed-term contract;
• the employee resigns in response to a fundamental (i.e. very serious) breach by the employer of the employment contract (known as constructive dismissal);
• the employee resigns in response to an unambiguous ultimatum: “resign or you will be sacked!” ;
• the employee is made redundant;
• the employee is not allowed to return to work after taking maternity, adoption or shared parental leave;
• a new employer after a business transfer or a change of service provider covered by TUPE refuses to take on the transferring workforce (see Chapter 12);
• 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).
The law does not allow employees to give up their right to claim unfair dismissal (or any other statutory employment rights) except in very tightly controlled circumstances (see page 469: Settling a claim). This is a recognition of the inequality of the employment relationship and the risk that employees may feel forced to give up their rights to keep their job. For example, employees are not allowed to agree in advance that particular events, if they happen, will end the contract automatically, so that there will be no “dismissal” :
Mrs Igbo asked for extended holiday to visit her family in Nigeria. Her employer agreed, provided she accepted that her employment would end automatically if she failed to return by the agreed day. When she failed to return, the Court of Appeal refused to rule that the contract had terminated automatically, finding instead that there had been a dismissal. Any other conclusion would have allowed the parties’ arrangement to circumvent the tribunal’s jurisdiction to decide whether a dismissal was fair or unfair.
Igbo v Johnson Matthey Chemicals Ltd [1986] IRLR 215