Appendix 2

Activity: Applying the law

Below is a reasonably straightforward problem question and a guide on how to prepare to answer it

There are always four essential ingredients to answering problem questions:

• ■ First you must be able to identify which are the key facts in the problem, the ones on which any resolution of the problem will depend.
• ■ Second you will need to identify which is the appropriate law which applies to the particular situation in the problem.
• ■ The third task is to apply the law to the facts.
• ■ Finally you will need to reach conclusions of some sort. If the question asks you to advise then that is what you need to do. On the other hand if the problem says ‘Discuss the legal consequences of ...’ then you know that you can be less positive in your conclusions.

Problem

Alan has been employed as a delivery driver for Prontocouriers for seventeen years. In the works rules is a clause requiring that drivers must reach delivery points by set times and failure to do so is subject to disciplinary proceedings. Alan was dismissed last week with immediate effect. He was told that this was because he had arrived twenty minutes late at a delivery. He received no disciplinary warning of any sort, nor was he allowed to appeal the decision. Alan is aware that two other delivery drivers regularly arrive late at deliveries but that no action has ever been taken against them.

The facts

It is important to have a clear idea of what the principal facts are, particularly here where there are a number of significant aspects to the question. We are told that Alan is an employee so we do not have to consider that, continuity also looks not to be an issue and it looks unlikely that there is an automatically unfair dismissal; however, we can still mention both. We do need to consider what potentially fair head of dismissal is likely in the circumstances and whether the dismissal is fair in fact. The main facts seem to be:

• ■ Alan has been employed for seventeen years by Prontocouriers.
• ■ He is contractually bound to reach his delivery points on time or face disciplinary proceedings.
• ■ He arrived at a destination twenty minutes late.
• ■ He was summarily dismissed as result.
• ■ He was given no warning or allowed to appeal the decision to dismiss him.
• ■ Alan is aware that two other delivery drivers regularly arrive late at deliveries but have never been disciplined.

The appropriate law

It is very important when answering problem questions that you use only the law that is relevant to the precise facts, if for no other reason that you are not getting any marks for using law that is irrelevant, and so you are wasting valuable writing time. By looking at the various facts we can say that the following law may be relevant in our problem here

• ■ Under s94 ERA an employee is entitled not to be unfairly dismissed.
• ■ Under s95 there must be a dismissal – which can be with or without notice.
• ■ There are a number of exclusions not able to bring claims.
• ■ There is a qualifying period of two years’ continuous employment – but this does not apply in certain circumstances.
• ■ There a number of areas of automatically unfair dismissal.
• ■ There are five categories of potentially fair dismissals – including capability and qualifications, and conduct (misconduct).
• ■ Capability it might involve incompetence that would justify dismissal Woods v Olympic Aluminium Co (1975), but not if the employee was properly instructed Davison v Kent Meters Ltd (1975), and proper disciplinary procedure should be carried through Lowndes v Specialist Heavy Engineering Ltd, but the longer an employee’s service the more difficult it is to prove.
• ■ Explain that a dismissal for conduct may be appropriate where disciplinary standards are infringed sufficiently seriously Parsons v McLoughlin.
• ■ Explain that for a dismissal to be fair the employer must genuinely believe that the employee has committed an act of misconduct, had reasonable grounds for that belief and carried out a proper investigation British Home Stores Ltd v Burchill (1980).
• ■ Explain that a test, in five stages, was outlined in detail by Browne-Wilkinson J in Iceland Frozen Foods v Jones [1983]:
  • The tribunal should begin with the words of s98(4) ERA 1996 – whether the employer acted reasonably, determined in accordance with equity and the substantial merits of the case.
  • The tribunal must consider whether the employer acted reasonably – not whether or not they think the dismissal was fair.
  • The tribunal must not substitute its own decision as to what the right course was for the employer to adopt.
  • There is a band of reasonable responses to employee’s conduct in which different employers might take different views.
• ■ Explain that the function of the tribunal is to determine whether the dismissal fell within that band.
• ■ Explain that there must also be procedural fairness measured against the ACAS code which identifies fairness in the following:
  • raising and dealing with issues promptly and avoiding unreasonable delays; consistency from both sides;
  • carrying out necessary investigations;
  • giving employees full information and allowing them to state their case (in this respect s10 Employment Relations Act 1999 is also important in allowing the right to be accompanied at all hearings);
  • the provision of appeals;
  • keeping proper records.
• ■ Explain that summary dismissal is only available for gross misconduct.

Applying the law to the facts

• ■ It looks unlikely that Alan will not have sufficient continuous employment to claim.
• ■ Alan has been dismissed according to s95 ERA 1996 – he has been dismissed without notice.
• ■ There is no apparent issue of ineligibility for a claim or an automatically unfair dismissal.
• ■ The possible heads of potentially fair dismissal appear to be either capability or conduct.
• ■ It seems unlikely that Prontocouriers would be able to claim incompetence after such a long period of employment – seventeen years.
• ■ The more likely reason for the dismissal is conduct because not reaching the delivery point on time is identified as subject to disciplinary proceedings in the works rules.
• ■ Using the reasonable range of responses test – there is no real indication of a full investigation – the question is whether the dismissal could be considered reasonable such that other employers may have reached the same decision – it seems quite harsh in the circumstances – other disciplinary action may have been more appropriate.
• ■ It is questionable whether Prontocouriers has acted procedurally fairly since there is no appeal available.
• ■ There is inconsistency of treatment between different workers – although this will not always make the employer’s action unfair.
• ■ The dismissal is in effect summary and could only be justified for gross misconduct – it is unlikely that Alan’s behaviour amounts to gross misconduct.

Conclusions

The dismissal is likely to be considered unfair.