Chapter Updates

Chapter 16

Dismissal

In Diosynth Limited v Thomson [2006] IRLR 284, the Court of Session held that an employer is not entitled to take in to account expired disciplinary warnings when making decisions to dismiss an employee for breaches in following safety procedures. The employer in this case had received a written warning about prior breaches of health and safety procedures. The warning was placed on the employees file and stated that it would remain on his record for 12 months. In such circumstances the employee was entitled to assume that the warning would cease to have effect after twelve months and therefore could not be taken into account in respect of subsequent disciplinary action, even though it related to breaches of health and safety.

Where an employee refuses to sign a post-employment restrictive covenant, this may amount to a fair dismissal subject to the procedures for effecting a change to the terms and conditions being fair- Willow Oak developments Ltd t/a Windsor Recruitment v Silverwood & others [2006] IRLR 607

The limits on compensation have risen from February 2007 as follows:

The maximum compensatory award has increased from £58,400 to £60,600.

A week’s pay for the purposes of calculating the basic award and statutory redundancy payments has increased from £290 to £310.

The minimum basic award where the dismissal relates to trade union membership or activities or health & safety representation etc has increased from £4000 to £4200.

Redundancy

The TUPE Regulations 1981 have been replaced by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246). The new regulations introduce a wider definition of ‘relevant transfer’ to include service provision changes; they clarify the rules in relation to transfer related dismissals and set out the limited circumstances in which employers may change employees terms and conditions; they place new requirements on the transferor to notify the transferee of the identity of the employees who are to transfer, as well as any specified rights and liability in relation to them and they provide for greater flexibility in there application in cases where the transferor is insolvent.

March 2003

Page 498

Paragraph 16.3: The case of Eastwood & Another v Magno-Electric plc [2002] IRLR 447 applies the decision in Johnson v Unisys (2001) and Gogey v Hertfordshire County Council (2000) in allowing the employee to proceed with unfair dismissal or tort/contract proceedings, but not both, where there is an alleged breach of the implied term of trust and confidence.

Page 498

Paragraph 16.3: Failure to follow dismissal procedures may also result in a breach of the duty of trust and confidence – King v University Court of the University of St Andrews [2002] IRLR 252.

Page 508

Paragraph 16.9: ‘The band of reasonable responses’ test also applies to the question of the reasonableness of an employer’s investigation into alleged misconduct – Sainsbury’s Supermarkets Ltd v Hitt (2003) CA.

Page 526

Paragraph 16.12.5: The transfer of rights extends to participants in a profit sharing or share option scheme – MITIE Managed Services Ltd v French & Others [2002] IRLR 512.