Unfair dismissal

In one of a growing number of cases, a Belfast tribunal has looked at whether an employer fairly dismissed an employee for gross misconduct after the he posted very offensive comments aimed at a co-worker on Facebook.

Resignation with immediate effect takes effect on the day it is received by the employer. When the decision to leave is that of the employee, the date of termination is when the employee communicates his or her decision in clear terms. Nothing that happens subsequently will change that date from being the effective date of termination (EDT).

The Court of Appeal has made some fairly forceful comments about an NHS trust’s use of suspensions during a disciplinary process where the trust referred a matter of alleged gross misconduct to the police. Describing this as ‘little short of astonishing’ the court was highly critical of the employer’s actions. The case also highlights that where a misconduct dismissal is likely to lead to the loss of someone's future career, the investigation, disciplinary process and appeal must be particularly thorough.

A ‘sufficiently close connection between the employment and Great Britain’ will enable an employee to claim unfair dismissal. Therefore a British citizen who lived in England but who worked for a British-registered company in Libya on a month-on, month-off basis, could bring a claim of unfair dismissal.

A tribunal was wrong to find that an employer should have followed a particular procedure as regards medical enquiries before dismissing an employee who had been off sick for a year. And while it may be reasonable to take long service into account when deciding to dismiss, length of service is irrelevant when considering the reasonableness or otherwise of the employer’s investigation.

Consistency – the stated aim of all disciplinary procedures. But what if two similar offences result in different outcomes – is this by definition unfair? Not necessarily says the EAT if the employer has offered (and the tribunal has accepted) a reasonable justification for the differing treatment.