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 Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.