In right not to be unfairly dismissed by

In our current case,
if the employer decides to go forward and dismiss Mr. Shaw on the basis of
gross misconduct, on the facts one possible option is for Mr. Shaw to bring a
claim for unfair dismissal under Employment Rights Act 19961 which states that “An employee has the right not to be
unfairly dismissed by his employer.” Considering that our client has
been an employee of Technical Solutions Limited since 2000, with no gaps in his employment period satisfies
the legal criteria under Employment Rights Act 1996 to bring a claim for
unfair dismissal.

In order to
determine whether the employer has acted fairly in dismissing the employee
under gross misconduct, the employer must prove that the dismissal was both
procedurally and substantively fair.
Gross misconduct is can be defined as an act which is so grave that it  destroys the relationship between the two

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As per Smith LJ in Taylor
v OCS Group Ltd2  “the employment tribunal’s task is to decide
whether, in all the circumstances of the case, the employer acted reasonably in
treating the reason it has found as a sufficient reason to dismiss.

The leading
case which set out a three-part test to assess whether a dismissal for
misconduct is fair or not is British Home Stores Ltd v Burchell3  , known as the Burchell test. It states that the
dismissal will be fair if at the time of the dismissal the employer:

the employee to be guilty of misconduct;

reasonable grounds for believing that the employee was guilty of that
misconduct; and

carried out an investigation whilst considering all the circumstances of the

The case of Burchell clearly differentiated the reasonableness
of the investigation and the matter of dismissal as being two separate issues
when deciding if the employer took a reasonable response towards an employee’s

The first factor to examine in an unfair dismissal case is whether the
employer had a fair reason to dismiss and whether the conclusion of management
was a reasonable one as per the first limb of Burchell test.” The only reason stated by the employer
is gross misconduct on the part of Mr. Shaw.  In the case of Sandwell & West Birmingham
Hospitals4  gross misconduct has been described as either
“deliberate wrongdoing” or amount to “gross negligence”.  The burden of proof lies with the employer to
show, after a reasonable investigation, that Mr. Shaw’s actions were so serious
to justify immediate dismissal.
In the recent case of Adesoken v Sainsbury’s
Supermarkets Ltd  stated obiter dictum
that “a failure to act where there was no intentional decision to act contrary
to or undermine the employer’s policies” does not constitutes such a grave act
of misconduct as to justify summary dismissal.

It was found in the case of NHS 24 v Pillar5
that repeated actions of misconduct can amount to gross misconduct and constitute
reason for dismissal. Therefore, distinguishing this case from the facts of our
case, where Mr. Shaw has never acted in a wrongful manner, and he proved to be
a valuable employee, it can be argued that the reason to dismiss does not fall
within the reasonable band of responses.

When establishing a fair dismissal, s.98(4) calls for
consideration of all circumstances, including “the size and administrative
resources of the employer’s undertaking”

Even if there is a justified reason to dismiss Mr. Shaw, the
dismissal will still be unfair if the employer has not followed a correct

In the Court of Appeal case of Whitbread v Hall 2001 IRLR
275, the Tribunal found that due to lack of transparency to the claimant it
rendered the dismissal was unfair.

1 Section 98(4) of Employment Rights Act

2 Taylor v OCS Group Ltd 2006 ICR 1602

3 British Home Stores Ltd v Burchell 1978
IRLR 379

4 Sandwell & West Birmingham Hospitals NHS Trust v Westwood

5 NHS 24 v Pillar UKEAT/0005/16/JW



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