| Unfair Dismissal Law Factsheets |
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* Fixed-term Workers Rights: see more ...
* The correct test for unfair dismissal
In the cases of Foley v The Post Office and HSBC Bank plc v Madden [2000] All ER (D) 1137, the Court of Appeal looked at the correct test to apply in unfair dismissal law an whether an employer has acted reasonably in dismissing an employee, following the EAT's controversial decision in Haddon v Van Den Bergh Foods Ltd [1999] IRLR 672.
In Haddon the EAT has formulated at least three different versions of the test, causing immense uncertainty for employment tribunals.
Section 98(4) of the Employment Rights Act 1996 provides for dismissal for one of the potentially fair reasons listed under section 98(2). The determination of whether a particular dismissal is fair or unfair ‘depends on whether in the circumstances ... the employer acted reasonably or unreasonably in treating [that reason] as a sufficient reason for dismissing the employee and shall be determined in accordance with equity and the substantial merits of the case’.
The position summarised by Browne-Wilkinson J in Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, is that in judging the reasonableness of the employer’s conduct, a tribunal may not substitute its decision as to the right course that should have been adopt for that of the employer.
The test is set out in the EAT’s decision of British Home Stores Ltd v Burchell [1980] ICR 303, which has been approved by the Court of Appeal in W Waddel & Co Ltd v Tepper [1980] ICR 286).
In Haddon the EAT held that the ‘band of reasonable responses’ test had led tribunals to apply what amounted to a perversity test. Morison J stated that there was no band to consider, only whether the employer acted reasonably in invoking the sanction of dismissal in the circumstances of the case.
See also the later case of Midland Bank plc v Madden [2000] 2 All ER 741.
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Contracts and contractual terms
1. FONTANA (GB) LTD v FABIO
Employment Appeal Tribunal
Wall J, P.A.L Parker, G.W Wright
July 4, 2002
In this case it was held that,
(1) the "entire agreement clause" was a binding agreement between the parties (see Inntrepreneur Pub Co (GL) v East Crown Ltd [2000] 2 Lloyds Rep 611).
However, the entire agreement clause did not expressly say it contained all the terms of the agreement (White v Bristol Rugby Club [2002] IRLR 204). It did not exclude collateral warranties.
(2) a separate collateral oral agreement relating to pension contributions was void for uncertainty.
Pensions and retirement - Contracts and contractual terms
2. LONDON BOROUGH OF NEWHAM v SKINGLE & ANR
Chancery Division
Jacob J
May 23, 2002
In this case it was held that,
Overtime should not be included in the calculation of final salary for the purpose of determining pension. The word "overtime" indicates time spent working beyond the basic hours of the contract
3. Fixed-term Workers Rights: see more ...
If you are dismissed contact our legal partners CCRS (the authors of this factsheet) immediately.
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Teenage Pregnancy
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