UK: Dismissal Issues - A Summary Of Some Important Decisions

Last Updated: 16 September 2007
Article by Robert Hill and Nick Dent

Expired disciplinary warnings

The ACAS Code of Practice on Disciplinary and Grievance Procedures is taken into account by tribunals and is used by them as a guide to good industrial practice.

The ACAS Code recommends that:

  • first written warnings should be active for six months;
  • final written warnings should be active for twelve months; and
  • only in the case of extremely serious conduct, which is bordering on gross misconduct, should warnings remain active indefinitely.

In Airbus UK Limited v Webb (2006), Mr Webb was employed as an aircraft fitter. In July 2004, he was initially summarily dismissed for gross misconduct because he had allegedly fraudulently misused company time and equipment by washing his car when he should have been working. However, on appeal, a final written warning was imposed, which was expressed to remain on his personnel file for 12 months. When he was reinstated, he was sent a letter informing him that further misconduct was likely to lead to dismissal.

On 20 September 2005, just three weeks after his final written warning expired, Mr Webb was found with other employees in a locker area where they appeared to be watching television, when they should have been working.

Following a disciplinary hearing, all employees were found guilty of gross misconduct. Mr Webb was summarily dismissed. The other four employees were given a final written warning, and were not dismissed because they had no prior disciplinary record.

The Employment Appeals Tribunal ("EAT") held that expired disciplinary warnings should be ignored when deciding which disciplinary sanction to give an employee. It gave helpful guidance on the practical impact of the decision, in particular that:

  • The purpose of giving a warning is to enable the employee to know where he stands and what is expected of him.
  • If the warning is to expire, this gives rise to the expectation that it does so for all purposes.
  • Employers can cater for exceptional circumstances in their disciplinary policy, by tailoring it to particular circumstances. Examples of this are:

- although final warnings should normally have a time limit of 12 months, the time limit could be longer than this if the nature of the misconduct justifies it; and

- an employer might be justified in extending the period of a warning in respect of a later act of serious misconduct where the misconduct is the same, or substantially the same, as that for which the earlier final warning was given.

In light of this decision, employers are advised to review their disciplinary policies, and to consider whether they should be "tailored" to cater for exceptional circumstances.

Failure to offer "suitable alternative employment

Under the Employment Rights Act 1996 ("ERA"), to avoid a finding of unfair dismissal, an employer must show that:

  • the dismissal was for one of five potentially fair reasons; and
  • it acted reasonably in treating the reason as a sufficient reason to dismiss the employee.

The ERA also provides that failure by an employer to follow procedures in the dismissal of an employee does not of itself make the employer’s action unreasonable, provided that the employer can show that it would have dismissed the employee even if it had followed the procedure. This can lead to a finding that the dismissal was fair, notwithstanding that procedural errors occurred.

In Loosley v Social Action for Health, the EAT considered whether a dismissal was fair in circumstances in which the employer had failed to offer the employee a particular job, which the employee alleged was "suitable alternative employment" ("SAE") because it was influenced by a third party which preferred another employee for that role.

Mr Loosley was employed by Social Action for Health ("Social Action") as a mental health worker. Social Action’s work was funded by a local authority, which was unhappy with the work Social Action had done and decided to terminate the funding arrangement. Social Action also employed a Mr Walker who was junior to Mr Loosley. Work on another project for the local authority became available when otherwise Mr Loosley’s and Mr Walker’s jobs would have been redundant. This job was not offered to Mr Loosley. The local authority wanted to work with Mr Walker and did not wish to continue working with Mr Loosley.

The EAT concluded on the evidence that Mr Loosley would not have been appointed to the job for the local authority even if Social Action had drawn Mr Loosley’s attention to this job as SAE. The dismissal was found to be fair even though:

  • a third party had influenced the redundancy procedure; and
  • Social Action had not followed a fair procedure, by failing to consider Mr Loosley for a job that would have been SAE.

Whilst, at first glance, it seems surprising that a third party can influence a redundancy process - as the EAT acknowledged - where an employer whose business depends upon gaining a contract understands that the contract will only be obtained if a particular employee does the work, it is difficult for the employer not to appoint that particular employee. This is, of course, subject to the proviso that the decision is not tainted by discrimination.

Resignation or dismissal?

Employees can only bring a claim for unfair dismissal under Section 98 of the Employment Rights Act 1996 ("ERA") if they have been dismissed. A dismissal will occur if either:

  • the employer terminates the employment; or
  • the employee resigns and can establish that he was constructively dismissed - i.e. that:
  • there was a fundamental breach of contract by the employer;

  • he resigned because of that breach; and

  • he did not delay too long before resigning, thereby affirming the contract.

It is not always clear whether an employee has resigned, or whether he was dismissed. Examples of findings by the courts on this issue include:

  • where an employee was told that he would be dismissed if he did not resign = dismissal (East Sussex County Council v Walker (1972))
  • where an employee chooses to resign rather than face disciplinary proceedings = resignation (Staffordshire County Council v Donovan (1981))
  • where an employee enters into a genuine severance agreement which is negotiated between the parties = resignation (Crowley v Ashland (UK) Chemicals Limited (1979)).

In the recent case of Sandhu v Jan de Rijk Transport Limited (2007), the Court of Appeal considered whether an employee, who entered into a severance agreement during a meeting at which he was told that he would be dismissed, had resigned or been dismissed. Under the existing case law, for there to be a resignation there should be some form of negotiation and discussion with the employee in which he has a genuine choice.

The Court of Appeal overruled the decision of the Employment Tribunal, which had been upheld by the EAT, and held that the employee had been dismissed on the grounds that:

  • he had not been told why he was being called to the meeting;
  • he had not been given an opportunity to reflect on the employer’s proposals, or to take advice on these; and
  • the terms of the severance agreement were not particularly favourable to him.

It found that the employee had done no more than attempt to "salvage what he could from the inevitable fact that he was going to be dismissed … the very antithesis of free, unpressurised negotiation".

Whilst most employers would not take such an extreme position as the respondent did here, this case serves as a good reminder of the requirement that, when signing up to a severance agreement, an employee should be given a genuine choice and the ability to negotiate a settlement on the termination of his employment. Otherwise, an employer runs the risk that the employee will succeed in a claim for unfair dismissal.

Length of service

In Daymond v Enterprise South Devon (2007), the EAT considered the issue of whether an employee had the requisite length of service to bring an unfair dismissal claim.

In January 2005, Miss Daymond entered into an arrangement with Enterprise South Devon whereby she acted as "director in charge" of the company. She chose to invoice the company for her services through one of her own companies, rather than being paid through the payroll. In view of this, no deduction for PAYE was made during this time. Subsequently, in April 2005, she entered into a formal contract of employment with the company. She was dismissed in January 2006.

Miss Daymond subsequently brought a claim for unfair dismissal (as well as for damages for wrongful dismissal). The company contended that she did not have the requisite one year’s qualifying service to bring an unfair dismissal claim, on the basis that she had only been employed since April 2005, when she entered into a formal employment contract.

The EAT upheld the Tribunal’s decision that, although Miss Daymond had been an employee since January 2005, her contract was tainted by illegality. In view of this, she could not claim unfair dismissal. The EAT found that the contract that was in place between January and April 2005 was illegal because it had the effect of depriving the Inland Revenue of a payment (PAYE) to which it was entitled. However, the EAT allowed the appeal in relation to wrongful dismissal, based as it was on the contract entered into in April 2005.

Whilst this decision is very much based on the specific facts of the case, it is noteworthy that the Tribunal found that Miss Daymond had been an employee since January 2005.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions