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Terms in this set (19)

Unfair dismissal when is it automatically unfair?

3 stages

1. Must be an eligible employee and dismissed by employer

2. Must be potentially fair reason for dismissal

3. Dismissal for that reason must be fair in all circumstances

Claimant has to show they are eligible and dismissed the employer has to show there was a potentially fair reason for the dismissal and finally tribunal will look into the fairness of the dismissal of that reason

What that means if dismissal was not for one of the potential fair reasons then the employer will fail at the second point and the dismissal will be unfair it will not be necessary for tribunal to go on to stage three

If equate to capability would be a fair reason


A list of unfair reasons for dismissal this means if an employee is dismissed for one of those reasons the dismissal will be unfair regardless of any jurisdiction the employer may have in the particular circumstances for dismissing . Over 50 automatic reasons for unfair dismissal


Where the reason for diss relates to pregnancy

It is connected to raising general health and Safety issues

It is because someone is a genuine whistleblower

Is related to the fact an employee is in a union

It is because an employee complained they not being paid national min wage or the living wage

It is because the employee refused to work more than 48 hours per week

Because a shop worker refused to work a Sunday

In addition to the diss being automatically unfair for many reasons no need for a employee to have a particular length to make a claim for unfair diss
Boris has been employed as a fitter for just over 3 years. He is now aged 19. He has resigned because his employer reduced his pay to increase the profits from his business. Boris has no written terms relating to his employment. Which ONE of the following statements about eligibility to claim unfair dismissal is CORRECT?
You Answered
A. Boris resigned so cannot claim he was unfairly dismissed.
B. Boris has only worked for one year since turning 18, so is ineligible to claim unfair dismissal.
Correct answer
C. Boris is only eligible to claim unfair dismissal if he is an employee.
D. Boris cannot claim unfair dismissal because he does not have a contract that of employment that has been breached.
The correct answer is C. Only employees can bring the statutory claim of unfair dismissal.



Whilst Boris did on the face of the facts resign, this will probably be a constructive dismissal. If so, his "resignation" will not be a bar to claiming that constructive dismissal was unfair and so A is incorrect. Boris has worked for 3 years; the fact that his employment began, and part of his continuous service was accrued, when he was under 18 is irrelevant so B is incorrect. Statement D is also incorrect because the fact that there is no breach of contract or other terms of employment is not relevant. Unfair dismissal is a statutory claim that does not rely on the contract of employment (written or oral), other than to establish the status of employee.



Boris is eligible because he has two years of continuous service, he is an employee, he is not within any of the specifically excluded classes of employee and he has been dismissed (assuming he proves his resignation amounted to a constructive dismissal).
Which ONE of the following statements about the ACAS code of practice for disciplinary and grievance procedures is INCORRECT?

You Answered
A. If the facts of a disciplinary issue and a grievance raised overlap, the employer can pause a disciplinary process until the grievance is dealt with if they consider that reasonable in the circumstances
Correct answer
B. If an employer does not follow the code of practice in full any dismissal will be found to be unfair.
C. If an employee is persistently unwilling or unable to attend a disciplinary hearing the employer can proceed in their absence.
D. The fact that an employee is convicted of a criminal offence is not generally a good reason, in the absence of special circumstances, to justify disciplinary action.
The correct answer is B. Under paragraph 3 of the Code it states "it may sometimes not be practicable for all employers to take all of the steps set out in this Code".



Where discipline and grievance issues overlap the Code gives employers a lot of discretion as to how best to proceed (see paragraph 46) so A is correct.



Statement C is correct because, when an employee repeatedly does not attend disciplinary hearings, the employer is permitted to proceed on the basis of the evidence or information available (see paragraph 25).



Merely being convicted of an offence is not generally a reason for disciplinary action, but may be if the offence is against the employer, impacts on the employee's ability to perform the job, damages the reputation of the employer or otherwise has a particular impact (see paragraph 31) so D is correct as a general principle.
Question 1
In approximately 100 words explain why you think that under s98(4)(a) the 'size and administrative resources of the employer's undertaking' is listed as a relevant factor when considering the fairness of a dismissal for misconduct?

Your answer:
This provision is designed to recognise that not all employers can be expected to meet the same procedural standards for dealing with a dismissal. For example, a tradesman who employs a single assistant cannot be expected to follow a process with different investigation, disciplinary and appeals officers. Equally a very large multinational employer would normally be expected to identify a different person to deal with each stage to ensure they are independent, and that they will have ascending seniority to ensure they feel free to disagree with the conclusions drawn by those involved earlier.



Whilst it might seem instinctively appropriate to have a universal standard applied to all employers, considering the above, this would inevitably be unfair for very large or very small employers.


Question 2
Using online resources find a copy of s98 of the Employment Rights Act 1996. By reference to subsection 98(2) explain which of the permitted reasons would be likely to be the primary reason for dismissal of the following employees:

a) Georgina was dismissed as a driver because she was banned from driving for 24 months.
b) Anne is dismissed after it is discovered that she was stealing from her employers.
c) Julian is dismissed after a series of repeated and seriously damaging mistakes at work.
d) Richard is dismissed because, after a fire, the factory he worked at closed down permanently and he is no longer needed.



Your answer:
a) Georgina was dismissed as a driver because she was banned from driving for 24 months.
The reason for Georgina's dismissal would be likely to be illegality [s98(2)(d)]. It would be illegal to allow her to continue to work as a driver as she is banned from driving.

b) Anne is dismissed after it is discovered that she was stealing from her employers.
The reason for Anne's dismissal would be likely to be conduct [s98(2)(b)].

c) Julian is dismissed after a series of repeated and seriously damaging mistakes at work.
The reason for Julian's dismissal would be likely to be capability [s98(2)(a)]. It could potentially be related to conduct [s98(2)(b)] if it was not clear if the mistakes were conduct related, e.g. caused by laziness.

d) Richard is dismissed because after a fire the factory he worked at closed down permanently and he is no longer needed.
The reason for Richard's dismissal would be likely to be redundancy [s98(2)(c)], following the fire he is no longer needed.




Question 3
In the workplace issues can be formally addressed via either a disciplinary process or a grievance process. Briefly explain what each of these are and why they are different.
Your answer:
Disciplinary procedures are commenced by employers to address alleged misconduct and/or poor performance by employees.



Grievances are commenced by employees to address concerns, problems or complaints that the employee wants to raise in a formal way with their employer.


Question 4
The ACAS code of practice for disciplinary and grievance sets out in the introduction to the code a number of general requirements for a fair disciplinary procedure. Access the code and set out these general requirements.
Your answer:
• Workplace issues should be dealt with promptly and without undue delay.
• Employers and employees should act consistently.
• Employers should carry out any necessary investigations, to establish the facts of the case.
• Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.
• Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting.
• Employers should allow an employee to appeal against any formal decision made.

Question 5
There are three potential remedies for unfair dismissal, compensation, reinstatement and re-engagement. Briefly explain what each of these remedies are, in particular explaining the difference between reinstatement and re-engagement.
Your answer:
• Compensation is money, awarded to compensate for financial loss from dismissal (e.g. lost pay) and a statutory sum called a basic award calculated.by a formula based on age, length of service and weekly pay and subject to a cap.
• Reinstatement is where a tribunal orders that an employer gives and employee their job back.
• Re-engagement is where a tribunal orders an employer to re-employ the claimant, although not in the same job as they were dismissed from.

Reinstatement and re-engagement are relatively rare. They have to be positively sought by the claimant and will generally only be ordered where a tribunal is convinced that they are credible, i.e. a functioning working relationship can be established.


Question 6
When an employee is dismissed following a disciplinary process that dismissal can be either summary or on notice. In a summary dismissal the employee is not given their contractual notice of dismissal. Briefly explain why this does not permit a breach of contract claim to be made.
Your answer:
Summary dismissal is only permitted when the employee has committed an act of Gross Misconduct, as opposed to several acts of more minor misconduct. When an employee commits and act of Gross Misconduct they have in effect committed a fundamental breach of contract. In the reverse of constructive dismissal where an employer commits the fundamental breach, when the employee has committed a fundamental breach of contract the employer is entitled to treat that breach as repudiating the contract resulting in a summary dismissal as the employee cannot enforce the terms of a contract they have repudiated.
1

Below is set out some suggested answers to the questions that you should compare to your submission. The italicised comments in square brackets were not specifically asked for in the task, nor will they be needed for any course assessment, they are included for interest. If you have undertaken additional reading this material may be familiar to you.

Of the five criteria set out in the activity instructions you were only asked to discuss those numbered three and five.

3. The claimant must have sufficient qualifying service.

i) The basic rule at s108(1) is that a former employee can only make a claim of unfair dismissal if they were employed for two years continuously by that employer before their dismissal.

[Under s108(2) there is a lower continuous service requirement of one month for cases when an employee claims they were dismissed because of a medical suspension. Under s108(3) there are a large number of exceptions from the requirement for any period of continuous service in a range of specific situations.]

ii) Part XIV is the 'Interpretation' part of the Employment Rights Act. Chapter 1 of this Part deals with continuous employment. The main provisions set out are as follows:

• Continuous employment starts on the day on which an employee starts work (s211(1)(a)).
• As long as for some part of a week an employee is employed, there will be no break in continuity (s212(1)). Accordingly, if they cease employment for only part of a week before resuming, continuity is not broken.
• When there is a whole week during which the employee is not employed, continuity of employment is broken (s210(4)).
• s235, a "week" for these purposes is defined as ending with a Saturday.
• If a respondent wants to argue there has been a break of continuity the burden of proof to show this is on the respondent (s210(5)).

5. The claimant must make their claim within the time limit for claiming.

i. Under s111(2)(a) the normal time limit for presenting a claim of unfair dismissal to the Employment Tribunals [who have the exclusive jurisdiction to hear such claims] is defined as being:

'before the end of the period of three months beginning with the effective date of termination'

ii. Under s111(2)(b) if a claimant seeks to present a claim after this time, they will only be permitted to do so if it:

'was not reasonably practicable for the complaint to be presented before the end of that period of three months'

The claimant would have to be able to prove this to the tribunal, who if it is proved can then extend the time for presenting a claim by:

'such further period as the tribunal considers reasonable.'

[It should be noted that following the introduction of compulsory Early ACAS conciliation prior to bringing a claim to the Employment Tribunals, there is scope to extend the three month time limit to allow for this conciliation to complete if it is commenced prior to the expiry of the three month time limit running out.]
The Fairness of a Dismissal



Provided that an employer can show that the reason for dismissal was one of the five permitted reasons set out in s98 of the Employment Rights Act 1996, the next stage in any claim is for the tribunal to decide if the former employer acted fairly in dismissing for that reason.



In this activity you will look more closely at the statutory test that a tribunal has to apply to this question, and the guidance from senior courts that has been given to tribunals about the application of that test.



Find online and read s98(4) of the Employment Rights Act 1996. You may find it of assistance to have a copy of this to hand when working through this activity.



Using Westlaw find a copy of the full transcript of Iceland Frozen Foods Ltd. v Jones [1983] I.C.R. 17. Read through the case report, noting in particular the part of the judgment where Browne-Wilkinson J seeks to "summarise the present law" regarding the approach to the test for fairness.



[Please note that the case predates the Employment Rights Act 1996, and refers to the Employment Protection (Consolidation) Act 1978. The 1978 Act was replaced by the Employment Rights Act 1996, which contained nearly identical wording in s98(4) as had previously been in s57(3) of the 1978 Act. Accordingly, when reading this judgment you can treat a reference to s57(3) as if it was a reference to s98(4)]



1. Explain in your own words in one or two sentences what the test of fairness is under s98(4).

2. In approximately 250 words set out the summary of the legal test that applies to the determination of fairness as set out by Browne-Wilkinson J.
Unit 5 Feedback to Activity 2

Below is set out some suggested answers to the questions that you should compare to your submission.

The italicised comment in square brackets at the end was not part of the activity and is included to highlight the similarity between s57(3) of the now repealed Employment Protection (Consolidation) Act 1978 and s98(4) of the Employment Rights Act 1996.


1. The test under s98(4).

When determining the fairness of an employer's decision to dismiss, the tribunal must consider the reason for the dismissal, how big an employer is and what administrative resources they have, in addition to the equity and substantial merits of the case. When doing this the only question is if the employer's decision to dismiss was reasonable.

2. Guidance from Iceland Frozen Foods Ltd. v Jones [1983].

In Iceland Frozen Foods Ltd v. Jones, Browne-Wilkinson J gave guidance regarding the correct way to apply s98(4) as follows:

i. the starting point should always be the words of the statute itself;
ii. in applying the section an tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the tribunal) consider the dismissal to be fair;
iii. in judging the reasonableness of the employer's conduct a tribunal must not substitute its own decision as to what is the right course to adopt for that of the employer;
iv. in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another might quite reasonably take another;
v. the function of the tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band, the dismissal is fair; if the dismissal falls outside the band, it is unfair.


In summary, the question is not if the tribunal judge would have dismissed, but if the employer was acting within a range of reasonable responses when they dismissed. If the tribunal concludes that a reasonable employer could regard a set of circumstances as sufficient to justify dismissal, the dismissal will be fair, even if other employers could have reasonably decided not to dismiss if faced with identical circumstances. In particular, it would be an error of law for a tribunal to seek to substitute their own view of what the employer should have done for the employer's view.


[Please Note: Section 57(3) of the Employment Protection (Consolidation) Act 1978 stated
"(3) Where the employer has fulfilled the requirements of sub- section (1), then, subject to sections 58 to 62, the determination of the question whether the dismissal was, fair or unfair, having regard to the reason shown by the employer, shall depend on whether the employer can satisfy the tribunal that in the circumstances (having regard to equity and the substantial merits of the case) he acted reasonably in treating it as a sufficient reason for dismissing the employee."
This was replaced with s98(4) of the Employment Rights Act 1996 which states:
"(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case."

Comparing these you can see that there was very little change of substance, and as a result the guidance in relation to s57(3) remains applicable to the application of s98(4)]
Unfair Dismissal Grounds



The activity is based on the fictional scenario below.



Your client is James, he has been in to discuss a potential claim of unfair dismissal and has given you the following information.



James used to work for Pineapple Phone Chips Ltd ("Pineapple"), a small private sector electronics design company who create graphics processor designs for smartphones. Pineapple is a UK company and has only one site in Liverpool where James worked. Pineapple employs about 30 staff.



James was employed by Pineapple for the last 10 years. When he was taken on he was given a contract of employment, which was amended three years ago when he was promoted to the role of senior technician. Two weeks ago there was an incident at work when James got into a fight with a colleague. James explained that the fight had started after a staff lunch to celebrate a huge new order, at which free alcohol had been provided. James admits he may have consumed more alcohol than he would normally drink.



The fight was with Angus, and had been over the FA cup final result. James is adamant that although he may have started the argument by mocking Angus' views, it was Angus who threw the first punch.



The fight was very brief, and was broken up by James' and Angus' line manager who saw the whole incident. They were both sent home to cool off and told to attend separate meetings the next morning.



When James attended his meeting he discovered that it was a disciplinary hearing. He was told by his line manager that fighting was not tolerated, and that, having spoken to Angus, he understood that James had started the altercation. James was asked to explain himself, but he was so taken aback by the suggestion that he had started the altercation that he had been unable to say anything coherent.



The meeting was very short, lasting only 10 minutes, at the end of which James was told that he was summarily dismissed, and that his outstanding pay to the end of the day would be sent in due course. Nothing further was said to James and he has not had anything in writing confirming or explaining the dismissal. James does not know what happened to Angus, but he believes he is still working for Pineapple.



Considering the facts above, the ACAS code of practice and the statutory test for unfair dismissal, compile a list of facts that would be favourable to James if he pursued a claim of unfair dismissal and what facts could be unfavourable. For each fact briefly explain why it would be favourable or unfavourable.



Unit 5 Feedback to Activity 3

Below is set out a list of favourable and unfavourable factors that you should have considered, along with a brief explanation for each factor.


Eligibility Facts:

1. Dismissal = FAVOURABLE
From the facts it can be seen that James was "summarily dismissed". This would count as a clear actual dismissal. This would be a favourable fact as he should be able to establish one of the eligibility requirements without difficulty.

2. Employee = FAVOURABLE
The facts state that James worked as an employee. He was given an employment contract. Whilst the description given by the parties does not determine if someone is an employee rather than a mere worker, nothing on the facts suggest that James was not an employee. This would be a favourable fact, but to be certain more information may be needed, including sight of the employment contract.

3. Not in an excluded class of employee = FAVOURABLE
James works as a technician for a private sector electronics design company based in Liverpool, England. There is nothing about this role that would appear to fit within the scope of any of the excluded classes of employment. This is a favourable fact as he should be able to establish one of the eligibility requirements without difficulty.

4. Continuous service = FAVOURABLE
James has worked for Pineapple for 10 years. Nothing on the facts suggests that there has been a break in the continuity of this service. To make a claim of unfair dismissal he has to have at least two years continuous service, which it appears he does. This is a favourable fact as he should be able to establish one of the eligibility requirements without difficulty.
[The fact he was promoted is not relevant to continuity, as it is continuity with an employer rather than in a specific role that is relevant.]

5. Dismissal was recent, so he is still within the time limit to claim = FAVOURABLE
James was dismissed two weeks ago. He has three months from the date of dismissal to make a claim of unfair dismissal. This is a favourable fact as it means that should have no problem making his claim within the time limit.

So all the facts are in favour of James being able to prove eligibility to pursue the claim of unfair dismissal.

Reason for dismissal = UNFAVOURABLE

From the information James has given he was dismissed as a consequence of the fact he had been involved in an argument with a colleague that escalated to a fight. There is no suggestion that there was any other or ulterior motive to dismissal James.

Dismissal of an employee for arguing and fighting would be a dismissal related to the conduct of that employee. This is one of the potentially fair reasons for dismissal under s98(2) of the Employment Rights Act 1996.

This would be an unfavourable fact as Pineapple should be able to show there was a potentially fair reason for dismissal with ease.

Fairness of dismissal facts:

1. Sent home to cool off = FAVOURABLE
This would appear to be a period of suspension, albeit on full pay. There does not appear to have been any explanation of this to James, other than he was told to go home and cool off. Under the ACAS code at para 8 "in cases where a period of suspension with pay is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action." It does not appear that Pineapple made any attempt to explain the purpose of the suspension or that it was not itself a disciplinary action. This may well be a favourable fact as it suggests that James' guilt may have been decided before the disciplinary hearing.

2. First meeting a disciplinary hearing on very short notice= FAVOURABLE
The facts suggest that James was told to attend a meeting. There is nothing to suggest that he was told it was a disciplinary hearing. James was given very little warning of the hearing. Under the ACAS code (see para 9) James should have been given written confirmation of the details of the meeting, and disclosure of the case against him possibly including relevant witness statements. None of this was done.

In addition, under para 11 of the ACAS code "the meeting should be held without unreasonable delay whilst allowing the employee reasonable time to prepare their case". James was given very little notice (only to the next day) and very little information prior to the hearing.

These would be favourable facts as they left James unable to prepare for the meeting properly, and as a result at the hearing he was not in a position to "answer any allegations" (see para 12).

3. No warning of potential dismissal at disciplinary hearing = FAVOURABLE
James was not warned that the disciplinary hearing could result in dismissal. This would have to be checked but appears to be a favourable fact as the ACAS code requires that he is told what the concerns are and what the "possible consequences" of those concerns are (see para 9).

4. No investigation prior to disciplinary hearing = FAVOURABLE
The facts do not suggest that there was an investigation of the incident prior to the disciplinary hearing beyond possibly speaking to Angus. It is not clear if James' or Angus' disciplinary meeting was scheduled first. This would have to be checked. Even if the line manager witnessed the incident itself, an investigation would be appropriate to check if the actual incident was a continuation of a previous argument for example. This is a favourable fact as the ACAS code requires there to be an investigation to establish the facts of the case (see para 5).

5. Not given the chance to be represented at the disciplinary hearing = FAVOURABLE
Although James was aware that he had to attend a meeting the morning after the incident, he was not told that this would be a disciplinary hearing. He was also not told that he was entitled to be accompanied at what transpired to be a disciplinary hearing. This is a favourable fact as the ACAS code requires that an employee has a right to be accompanied at a disciplinary hearing (see para 13).
[In addition to the code, the right to be accompanied is a statutory right to be accompanied to a disciplinary hearing, granted by s10 Employment Relations Act 1999]

6. No offer of a chance to appeal = FAVOURABLE
The facts clearly state that there was no reference to an appeal against the decision at the hearing itself. There was nothing provided in writing so there cannot have been the offer of an appeal in written form. This is a favourable fact as the ACAS code requires an appeal to be offered (see para 26).

7. James' line manager witnessed the incident = UNFAVOURABLE
Whilst this would not negate the need for an investigation, it would reduce the amount of investigation that was needed. Remember that the investigation does not need to be exhaustive, only what was reasonable. If the line manager saw the whole argument there may not be a need for much further investigation.

8. Pineapple employ only 30 staff = UNFAVOURABLE
The size and resources of the employer are taken into account when considering what disciplinary steps are reasonable. Pineapple are a not a large employer, and would have more limited resources and managers to enable them to fully comply with the ACAS code, for example they may struggle to have enough managers to have different persons handle an investigation, hearing and appeal. The small size would be an unfavourable fact for James, as the expectations on Pineapple would be lowered accordingly. As a result, there may be less criticism of the fact that it appears that James' line manager witnessed the incident and then has both investigated the incident (to the extent that he may have spoken to Angus) and then chaired the disciplinary hearing.

9. The disciplinary accusation is fighting = UNFAVOURABLE
A dismissal will only be fair if it was within the range of reasonable responses for an employer. It would usually be very difficult to argue that dismissal for fighting would fall outside this range. Remember that it is not relevant that other disciplinary sanctions could have been imposed, or that the tribunal would not themselves have dismissed. The fact this conduct is likely to put dismissal squarely within the range will make this an unfavourable fact.

10. James is a long serving employee and has been promoted = NEUTRAL
The fact that an employee is long serving is clearly a factor that could be used to argue that James deserves a second chance, so would be of assistance at a disciplinary hearing, but will not generally be of assistance in a claim for unfair dismissal. A tribunal cannot say that dismissal is outside the range because the employee deserved a second chance as that would be substituting their view rather than applying the range. The fact that James was a "senior" employee could count against him at a disciplinary hearing, as higher standards of conduct can be expected from more senior staff. This may become clearer if it can be determined what action was taken against Angus, if any.

Summary

There are a lot of procedural grounds for a claim of unfair dismissal that James could raise. Many of these would appear to be very strong grounds suggesting James would succeed in a claim. Care would have to be exercised however, as the only information we have is from James. The information we have is certainly not comprehensive and complete, and is likely to be given by James with a view to casting himself in the best light possible.

It would be very difficult to argue dismissal for fighting was not within the range of reasonable sanctions. However, to be fair a dismissal has to be both substantively fair and procedurally fair. Given all the procedural issues identified above, despite dismissal being within the range of reasonable responses, it is likely that James' dismissal would be unfair.
QUESTION 3

This question required a demonstration of knowledge of eligibility criteria to bring a claim of unfair dismissal and of the law and relevant procedure from the ACAS Code of Practice. These were issues you considered in Large Group and Workshop 5. In addition, as you were advising on whether eligibility could be established and on prospects of success, you were demonstrating your ability to apply the law to the facts as appropriate and give reasoned advice.

(a) In order to bring a claim of unfair dismissal, Jason must be eligible. He must be an employee, working under a contract of service (s.230(1) ERA 1999). This appears to be established on the facts as the facts state that he worked as a foreman for the company. He is not in an excluded class of employee. He must have at least two years' continuous service. He has worked for the company for 19 years so this can be proved. Finally, he must be dismissed. The facts clearly state that there was an actual dismissal when Len wrote to him telling him his employment was terminated with immediate effect. He must also bring the claim within the three month time limit. As all the eligibility criteria are satisfied, Jason can pursue a claim of unfair dismissal.

(b) Once Jason has established eligibility, the burden will shift to the respondent - Colour- to prove that there was a potentially fair reason for the dismissal (s.98(2) ERA 1996). The company will rely on the reason of conduct. In BHS v Burchell [1980] ICR 303, three questions were identified for the Tribunal to consider when the reason for dismissal was argued to be that of conduct.

Firstly, whether the employer had an honest belief in the employee's misconduct; secondly, whether there were reasonable grounds to hold that belief; and finally, whether the employer carried out a reasonable investigation to form that belief.

The company's representative, Len, appears to have had an honest belief in Jason's misconduct. The company will argue that he had reasonable grounds for that belief, taking into account the allegation made by Fiona, the anonymous text and Jason's behaviour at the meeting. It will also have to argue that the belief was formed after a reasonable investigation. This could cause difficulty to the employer as little investigation appears to have been carried out.

If the employer can discharge the burden of proving that the reason for dismissal was conduct, the Tribunal will have to determine whether the dismissal was fair. A failure to follow a fair procedure prior to taking a decision to dismiss is likely to result in the Tribunal concluding that the employer did not act fairly under s.98(4) ERA 1996 and that the procedure and decision to dismiss did not fall within the range of reasonable responses (Iceland Frozen Foods Ltd v Jones (1982)). The ACAS Code of Practice is relevant. Len appears to have made up his mind, firstly that Jason was guilty of theft and secondly, that he should be dismissed without following any investigation or meaningful disciplinary procedure.

The Code requires there to be a reasonable investigation of the incident or allegation prior to a decision to take disciplinary action in order to establish facts. No investigation was carried out by Len. It is clear from the facts that, whereas it might have been reasonable to meet with Jason on an investigative basis, this was not the purpose of the meeting. He said to Jason "I'm afraid it's a disciplinary".

Although Jason was told that the meeting between him and Len was to be a disciplinary meeting, this was not done in accordance with the ACAS Code. He should have been given written confirmation of the details of the meeting, and disclosure of the case against him. He should also have been given a reasonable time to prepare for the meeting. Telling him verbally in the car park and convening the meeting for the next day does not comply with the Code's procedures.

Furthermore, Jason was not told that he had a right to be accompanied at the disciplinary hearing. The ACAS code requires that an employee has a right to be accompanied at a disciplinary hearing (and is also a statutory right granted by s10 ERA 1999).

He was not warned that the disciplinary hearing could result in dismissal.

There appear to be several breaches of the Code committed by Len and these could lead the Tribunal to conclude that the dismissal was unfair, despite some attempt by Len to follow the correct procedure. He did, for example, notify Jason in writing of the opportunity to appeal against the decision to dismiss. Overall, although it is usually difficult to argue that dismissal for theft would fall outside the range of reasonable responses, the procedural issues identified are likely to result in a finding of unfair dismissal.