Unfair dismissal – when does a dismissal occur?
In an unfair dismissal case there are two obvious elements that have to be analysed – whether the Claimant was dismissed, and (if so) whether that dismissal was unfair. An employee can’t be unfairly dismissed without having been dismissed and, conversely, the dismissal can’t have been unfair unless the manner in which it was effected was unlawful. Most commentary on unfair dismissal examines the unfairness of the dismissal (and therefore its unlawfulness) but the issue of whether a Claimant has been dismissed is equally, if not more, important. This post will therefore examine when a dismissal occurs (and a future post will examine when a dismissal does not occur).
A dismissal can occur in one of three ways – termination of the contract of employment by the employer, termination of the contract of employment by the employee, or the completion of a fixed-term contract. We’ll look at termination by the employer in this post and proceed in the future to an examination of the other two elements.
Termination by the employer
Termination of the contract of employment by the employer can be with or without notice (i.e. the employer may choose to give the employee notice of termination or may summarily dismiss them).
The important element in cases where the employer has terminated the contract is what the employer’s intention was at the time of the purported dismissal. Generally, if the intention to dismiss is clear then the employee is entitled to take this at face value (although this doesn’t involve a consideration of whether the employer later offered to re-employ the employee – an important issue). However, if the intention of the employer in purportedly dismissing the employee is ambiguous then the situation must be assessed objectively – how would the reasonable man view the employer’s intentions in dismissing them? Words allegedly dismissing an employee must be given their ordinary meaning in the context they’re uttered. This context includes the nature of the employment, the relationship between the parties, and a consideration of what these words would normally mean. For example, if an employee is told to “fuck off” by their line manager, is this a dismissal? This really depends, as above, on the context. If words to that effect were used regularly during the working day (i.e. in a pressurised environment) then it probably wouldn’t be reasonable for the employee to take this as signifying intention to dismiss. Again, an examination of the context within which the dismissal took effect is crucial to determining whether a dismissal took effect.
If the employee resigns under duress, is this a dismissal? Again, this depends on the particular facts of the situation. The general rule is that a dismissal is effected if there is no choice in the matter. However, in more complicated situations there is a “fuzzy grey line” as to whether a dismissal has taken place. For example, where the employee has been invited to resign or be dismissed, does this constitute dismissal? In usual circumstances, yes. However, if there are other factors at play extraneous to this (such as the employee’s conduct) then there either may not have been judged to be a dismissal or, alternatively, the dismissal may be deemed to be fair.
Unilaterally imposing radically different contract terms can also effect a dismissal. The imposition of new terms destroys (terminates) the old contract of employment and is repudiatory on the employer’s behalf. The employee can then choose whether to accept the repudiatory breach of contract (and effectively be dismissed) or waive the breach and work under the new contract of employment. The decision of the employee will obviously be dependent on their prevailing situation. This situation is also known as “constructive dismissal”.