UK EMPLOYMENT LAW: Unfair Dismissal

Within the UK's employment law, unfair dismissal is one area that interests me a lot. This is because it involves the protection of employees from termination without just cause. In essence, the balance between employee rights protection and providing employers with the flexibility to manage their workforce is a central theme in the UK employment law.[1] Similarly, this area of employment law is interesting due to the complexities and nuances that come with it. According to Cabrelli, it involves nuanced and complex legal principles, for instance, the determination of whether or not a dismissal is fair relies on different factors, including the circumstances of the case, the procedure followed by the employer and the reasons for dismissal.[2] This makes unfair dismissal a challenging yet intellectually stimulating area of law. Furthermore, it is a dynamic area with a substantial and continually changing body of case laws. This is because the interpretation and application of law in this area are greatly shaped by the decisions of higher courts and tribunals, which provide a rich, diverse source of precedence and legal arguments.[3] Last and perhaps more importantly, this area has a human element, dealing with real individual’s lives and livelihoods.

Consequently, the developments in this area of law have been marked by evolving workplace practices, legislative changes and legal rulings. First, in terms of changing workplace practices, the shift to hybrid and remote work models has raised new issues concerning employment practices and the application of unfair dismissal laws.[4] For instance, employers have had to navigate issues associated with performance monitoring and how to handle disciplinary issues to ensure dismissals are fair. Similarly, growing awareness of mental health issues has compelled employment tribunals to take into account how mental health impacts unfair dismissal claims.[5] However, the COVID-19 pandemic also saw the introduction of the Coronavirus Job Retention Scheme (furlough) to help employers impacted by coronavirus to retain their employees, bringing unique considerations and challenges to unfair dismissal cases.[6]

Secondly, in terms of legislative changes, the UK government introduced the Good Work Plan in 2018 following the 2017 Review of Modern Working Practices by Tylor and colleagues. This plan’s main aim was to improve the rights of workers and clarify employment statuses.[7] This included measures like extending the right to a written statement of terms and conditions to every employee to ensure fair treatment in the workplace. It also increased penalties for employers who commit aggravated breaches of employment law. Similarly, another legislative change was the introduction of parental bereavement leave and pay in 2020, providing parents with the right to two weeks' leave.[8] This would apply in circumstances where they have suffered a stillbirth after 24 weeks of pregnancy or lost a child under the age of 18. Therefore, this can impact the consideration of dismissal under such situations.

Thirdly, when it comes to legal rulings, one of the most prominent rulings is Uber BV v Aslam (2021), where the Supreme Court determined the employment status of Uber drivers.[9] In its ruling, the court stated that Uber drivers were not independent contractors but workers and thus entitled to basic employment rights. These rights included protection from dismissal without just cause. This ruling greatly affected the gig economy, forcing the sector’s employers to re-examine their worker classification and overall employment practices. There were also other earlier rulings, such as Royal Mail Group Ltd v Jhuti (2019), where the court ruled that a dismissal would be unfair if based on manipulated evidence from another manager.[10] In Independent Workers Union of Great Britain (IWGB) v RooFoods Ltd (t/a Deliveroo) (2017), the court ruled that Deliveroo riders were not employees but independent contractors, highlighting the importance of the right to substitution when determining employment status.[11] In its ruling in Autoclenz Ltd v Belcher (2011), the Supreme Court stated that car valeters were employees rather than independent contractors and pointed out that tribunals need to look past the written contract to the reality of the working relationship, including factors like mutual obligations, integration, and control.[12] Similar findings were also made in Pimlico Plumbers Ltd v Smith (2018), where the court not only ruled that the plaintiff was a worker but also emphasised the need to consider personal service and the extent of control an employer exercises.[13]

However, employment tribunals have refined the interoperation of unfair dismissal laws. This can be observed in cases such as Addison Lee Ltd v Mr C Gascoigne (2018), where the Employment Appeal Tribunal ruled that private hire drivers were workers, not independent contractors.[14] This aligns with the principles created by earlier cases as it emphasised the importance of personal service and control in determining worker status. Similar rulings were made in Dewhurst v CitySprint UK Ltd (2017), where the tribunal emphasised the actual working conditions and the degree of control in determining employment status.[15]

In conclusion, unfair dismal is an interesting area of UK law due to its complexities and nuances and importance in employee protection. However, it has also experienced various changes and influences including hybrid and remote work models, awareness of mental health issues, and the introduction of the Coronavirus Job Retention Scheme (furlough). It has also undergone several influential legislation like the Good Work Plan 2018 and parental bereavement leave 2018 and legal changes like Royal Mail Group Ltd v Jhuti (2019), among others.

      Table of legislations

Work Plan 2018

Parental Bereavement Leave 2018

Coronavirus Job Retention Scheme (furlough) 2020.

                                                      Table of Case Laws        

Addison Lee Ltd v Gascoigne [2018] UKEAT/0289/17

Autoclenz Ltd v Belcher [2011] UKSC 41

Dewhurst v Citysprint UK Ltd ET/220512/2016 (05 January 2017)

Independent Workers Union of Great Britain (IWGB) v RooFoods Ltd (t/a Deliveroo) (2017) 11 WLUK 313

Pimlico Plumbers Ltd v Smith [2018] UKSC 29

Royal Mail Group Ltd v Jhuti [2019] UKSC 55

Uber BV v Aslam [2021] UKSC 5

 

 

References

Bogg, A. 2018. The Common Law Constitution at Work: R (on the application of UNISON) v Lord Chancellor. The Modern Law Review, 81(3), pp.509-526. 

Cabrelli, D. 2020. Employment Law in Context.

Collins, P. M. 2022. Putting Human Rights to Work: Labour Law, the ECHR, and the Employment Relation. Oxford University Press.

Davidov, G., and Eshet, E. 2015. Intermediate Approaches to Unfair Dismissal Protection. Industrial Law Journal, 44(2), pp.167-193. 

Ford, M. 2018. Employment Tribunal Fees and the Rule of Law: R (Unison) v Lord Chancellor in the Supreme Court. Industrial Law Journal, 47(1), pp.1-45. 

Mantouvalou, V. 2008. Human Rights and Unfair Dismissal: Private Acts in Public Spaces. The Modern Law Review, 71(6), pp.912-939. 

Taylor, M. 2017. Good work: The Taylor review of modern working practices.

 

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[1] Virginia Mantouvalou, "Human Rights and Unfair Dismissal: Private Acts in Public Spaces," The Modern Law Review 71, no. 6 (2008)

[2] David Cabrelli, Employment Law in Context (2020)

[3] Alan Bogg, "The Common Law Constitution at Work: R (on the application of UNISON) v Lord Chancellor," The Modern Law Review 81, no. 3 (2018)

[4] Philippa M. Collins, Putting Human Rights to Work: Labour Law, the ECHR, and the Employment Relation (New York: Oxford University Press, 2022)

[5] M. Taylor, Good work: The Taylor Review of modern working practices (2017)

[6] G. Davidov and E. Eshet, "Intermediate Approaches to Unfair Dismissal Protection," Industrial Law Journal 44, no. 2 (2015)

[7] M. Taylor, Good work: The Taylor Review of modern working practices (2017)

[8] Michael Ford, "Employment Tribunal Fees and the Rule of Law: R (Unison) v Lord Chancellor in the Supreme Court," Industrial Law Journal 47, no. 1 (2018)

[9] Uber BV v Aslam [2021] UKSC 5

[10] Royal Mail Group Ltd v Jhuti [2019] UKSC 55

[11] Independent Workers Union of Great Britain (IWGB) v RooFoods Ltd (t/a Deliveroo) (2017) 11 WLUK 313

[12] Autoclenz Ltd v Belcher [2011] UKSC 41

[13] Pimlico Plumbers Ltd v Smith [2018] UKSC 29

[14] Addison Lee Ltd v Mr C Gascoigne: UKEAT/0289/17/LA

[15] Dewhurst v Citysprint UK Ltd ET/220512/2016 (05 January 2017)