Analyzing an Unfair Dismissal Case Study under Employment Law

This case study analyzes an instance of alleged unfair dismissal within the context of employment law. Mr. H, an employee of the Civil Service, was dismissed for gross misconduct after misusing the department's internet system. The case examines whether the dismissal was fair, considering Mr. H's subsequent claim of mental impairment and the provisions of the Equality Act 2010. The analysis considers the employer's knowledge of the disability at the time of dismissal, the nature of the misconduct, and relevant case law, such as British Home Stores Ltd v Burchell and City of York Council v Grosset, to determine the fairness of the dismissal and the potential for a successful appeal. Desklib offers a wealth of resources, including solved assignments and past papers, to aid students in understanding complex legal concepts.

Business Law
Running head: EMPLOYMENT LAW 0
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Introduction
Every country has certain laws to govern the employment relationship between an employer and
an employee. These laws have their huge significance as the same provide the rights and
responsibility of employer as well as of employee. Different legislations provide different
statutory rights to employers and employees. In the essay presented hereby, the focus will be
made on the rights and responsibility of both the parties of an employment relationship. In
addition to this, the rights of an employee in relation to discrimination and unfair dismissal will
be the center of the argument.
Right and responsibilities
The rights and responsibilities of both of the parties are mainly defined in the employment
contracts developed between them. However, some implied right and duties are there which exist
in every employment relationship. In addition to this, the legislation also provides certain
entitlements and duties, which are further mentioned as hereunder
Rights and Responsibilities of Employees
Under an employment relationship, employees have many rights which mainly includes the right
of an employee to get safe and healthy workplace, the right of limited working hours, the right of
not to be discriminated, right against unfair dismissal and so on (Eoc.org.uk, 2019). In addition
to the rights, employees also have a certain responsibility (Acas.org.uk, 2019). Firstly, it is the
responsibility of all the employee to conduct their work in a fair mode. It means that irrespective
of nature and size of the organization every employee should use fair modes of working. The
duty of care is another responsibility of the employees that they need to perform in favor of their

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employer. They are responsible to take care of the safety of themselves and others as well
(Atl.org.uk, 2019). The duty of mutual trust and confidence is another responsibility of an
employee. This duty is an implied duty. It means it is assumed and expected that an employee
will keep the information related to the employer safe and secure, whether the same is mentioned
under an employment contract or not.
Rights and Responsibilities of Employers
Employment contracts and laws do not provide the rights and responsibility, but the same also
prescribe these elements for employers as well. This can be stated that the entitlements of
employees are the duties of employer and vice versa. Employers are liable to provide a safe
workplace to employees and not to use any unfair practices such as discrimination and unfair
dismissal. Further employers have the right to dismiss the employees on fair and reasonable
grounds, for instance, misconduct.
Discrimination
Discrimination is one of the most important aspects of employment legislation. Discrimination is
an activity conducted by the employer where the same treats its different employees in a
different manner based on their sex, cast, creed, or any other factors (Cooper, 2014). Here this is
necessary to mention that discrimination is not a negative or bad act, but the same should not be
unfair. Discrimination seems to be unfair when the bases of the same are not legal and
reasonable (Allardyce.co.za, 2019). In order words, the discrimination should be justified and
there must be proper grounds of the same. Equity Act 2010 identifies nine protected
characteristics based on which an employer cannot make discrimination among two or more
employees. These characteristics are mentioned as hereunder:-

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Age
Race
Disability (Equalityhumanrights.com, 2019)
Religion
Sex
Gender reassignment
Sexual orientation (Augustus, Bold & Williams, 2019)
Marriage or civil partnership
Pregnancy and maternity (Citizensadvice.org.uk, 2019)
It means an employer cannot make the difference in between two employees based on above-
mentioned factors. The law prevents discrimination during work, training, recruitment,
redundancy, pay and benefits, transfer and promotion opportunities and dismissal.
Unfair Dismissal
An employer will not dismiss an employee based on above-mentioned nine factors. If an
employee will do the same, then such dismissal will be known as unfair dismissal. Not only this
but if an employer dismisses an employee for a valid reason but fails to follow the related
procedure properly, then also such dismissal will be considered as unfair dismissal. Now the
issue is to know about the fair dismissal. What are the legal bases of a dismissal? In order to
answer this query, this is to mention that the following are the basis of fair dismissal. If anyone
or more situations are there, then the employer is eligible to dismiss the employee and then such
dismissal will not be treated as unfair (a procedure also needs to follow). These factors are as
follow:-

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 Non capability to perform the job
 Drug or alcohol abuse
 Poor discipline
 Misconduct
 continually missing work (Nidirect.gov.uk, 2019)
Misconduct
Under employment law, many of the activities considered misconduct. It includes dishonesty,
theft and other unethical activities. Misconduct can be of two types one is normal misconduct
and another one is gross misconduct. Gross misconduct is misconduct of serious nature, which
goes to the basics of the employment contract and destroys the relationship of employer and
employee (Howse, 2017). The nature of misconduct is important to study as it affects the rights
of an employer. In cases of gross misconduct, an employer has the right to dismiss the employee
at an immediate basis without serving any notice. Following are some of the activities that are
counted as gross misconduct:-
Theft
Dishonesty (App.croneri.co.uk, 2019)
Breach of confidentially
Malicious damage
Fighting
Breach of drug/alcohol policy
Gross negligence
A serious act of insubordination

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Internet or email abuse (Landaulaw.co.uk, 2019)
Many of the times, it is mentioned under the employment contract that which activities of the
employee will be treated as gross misconduct. Apart from the gross misconduct, in any other
kind of misconduct, the employer needs to follow the set procedure.
After reviewing the aforementioned discussion, it is clear that an employer needs to have fair
ground to dismiss the employee. If the ground is misconduct that the employer is not responsible
to serve any advance notice to the employee. It was held in the case of British Home Stores Ltd v
Burchell [1978] ICR 303 that employer must have evidence to prove the misconduct (Cabrelli,
2016).
Disability and Gross Misconduct
According to the decision of City of York Council v Grosset [2018] EWCA Civ 1105 if an
employee does a misconduct because of his/her disability then his/her dismissal by the employer
will be considered unfair even in those situations where employer was not aware of the fact that
the misconduct was a result of disability (Mind.org.uk, 2019). However, the employer must be
aware of the disability of the employee.
Discussion on Case Study
In the case study provided hereby, the employee named H was in service of the employer since
the year 1968. In the year 2011, when he was on the position of the higher employee, he misused
the internet and electronic communication system of the company between 17 January 2011 and
6 May 2011. He was alleged to search the sexual material on the internet site. When employer
“Civil Service” came to know about the incident, the same dismissed Mr. H. Later on, while the

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appeal against dismissal; employee stated that he was suffering from mental impairment.
Applying the provisions of Equity Act 2010 and rules related to unfair dismissal, this is to state
that the conduct done by Mr. H was gross misconduct. He abused the internet of the
organization. In addition to this, his conduct could lead to an adverse impact on the other
employees if the employer would not have dismissed. As the conduct was gross misconduct, the
employer was not required to set any investigation meeting as Mr. H himself accepted his
conduct. Applying the provisions of British Home Stores Ltd v Burchell, the conduct was proven
to be there. The reason for dismissal was gross misconduct and not the discrimination based on
Mr. H’s disability. The disability came into light during the process of appeal. The employer had
no idea about the disability of the employee at the time of dimissal. Therefore, it is very clear
that the employer was also not aware of the fact that the misconduct of the employee was a result
of the disability. Applying the decision of City of York Council v Grosset, the employer is not
liable in this case as the condition namely “the employer must be aware of the disability” does
not satisfy.
Conclusion
In a conclusive way to say that as the employer had no idea about the disability, the act of
dismissal will not be considered as unfair. Further, the court of appeal can grant the decision in
favor of employee considering the provisions of discrimination cause of disability. On the other
side, the employer should think of another option except for the dismissal in this case, if the
conflict between reports presented by Mr. H get clear and it gets to prove that the disability made
an impact on the capacity of his working. However, for now, the dismissal is not unfair.

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References
Acas.org.uk. (2019) Building productivity: Rights and responsibilities. [online] available from:
http://www.acas.org.uk/index.aspx?articleid=5491 [Accessed on 12/02/2019]
Allardyce.co.za. (2019) Discrimination in the Workplace. [online] available from:
http://www.allardyce.co.za/discrimination-in-the-workplace/ [Accessed on 12/02/2019]
App.croneri.co.uk. (2019) How to deal with dishonesty at work. [online] available from:
https://app.croneri.co.uk/feature-articles/how-deal-dishonesty-work [Accessed on 12/02/2019]
Atl.org.uk. (2019) Duties of employees. [online] available from: https://www.atl.org.uk/advice-
and-resources/health-and-safety/duties-employees [Accessed on 12/02/2019]
Augustus, J., Bold, J. & Williams, B. (2019) An Introduction to Mental Health. US: SAGE.
British Home Stores Ltd v Burchell [1978] ICR 303
Cabrelli, D. (2016) Employment Law in Context: Text and Materials. UK: Oxford University
Press.
Ciry of York Council v Grosset [2018] EWCA Civ 1105
Citizensadvice.org.uk. (2019) Equality Act 2010 - discrimination and your rights. [online]
available from: https://www.citizensadvice.org.uk/law-and-courts/discrimination/about-
discrimination/equality-act-2010-discrimination-and-your-rights/ [Accessed on 12/02/2019]
Cooper, H. (2014) Professional Studies in Primary Education. UK : SAGE.
Eoc.org.uk. (2019) Employees Rights. [online] available from:
https://www.eoc.org.uk/employees-rights/ [Accessed on 12/02/2019]

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Equalityhumanrights.com. (2019) Protected characteristics. [online] available from:
https://www.equalityhumanrights.com/en/equality-act/protected-charactseristics [Accessed on
12/02/2019]
Equity Act 2010
Howse, M. (2017) Labour & Employment. UK:Law Business Research Ltd.
Landaulaw.co.uk. (2019) Gross misconduct. [online] available from:
https://www.landaulaw.co.uk/gross-misconduct/ [Accessed on 12/02/2019]
Nidirect.gov.uk. (2019) Fair reasons for dismissal. [online] available from:
https://www.nidirect.gov.uk/articles/fair-reasons-dismissal [Accessed on 12/02/2019]