Q1. "If he were to be dismissed on the day the system is supposed to go live, which if any of the following claims might he be able to bring successfully, and why: wrong dismissal, unfair dismissal, or an injunction preventing the dismissal from taking effect?"
In the case study, John has been an accountant for 21 months with a marketing organisation. John is facing a challenging situation with the Finance Director, John’s manager, who has threatened to immediately terminate his employment after raising concerns about the launch of a new IT accounting system. John has no written employment contract; however, he was told at the interview that his notice period is three months. On the balance of probabilities, it is difficult to definitively determine which type of claim, wrongful dismissal, unfair dismissal, or injunction, would most likely succeed. However, wrongful dismissal or unfair dismissal has varying gradations of potential.
If John claimed wrongful dismissal, he would need to demonstrate the termination or threat thereof, breached the terms of his contract of employment (ERA, 1996). This would be about John’s stated notice period at the interview versus the Finance Director’s threat of immediate termination. Incidentally, John has no written contract of employment, which means any oral aspect of the contract, precisely the alleged three-month notice period, would be open to interpretation and dispute (ERA, 1996).
Should John claim unfair dismissal, success would depend on whether he could demonstrate termination was based on a prohibited reason under UK employment law (i.e., discrimination). However, an employee must have two years of continuous service to claim unfair dismissal (John has 21 months, or 1.75 years, of continuous service). This threshold renders John ineligible to claim unfair dismissal unless John argues for an exception for whistleblowing (PIDA, 1998). If John pursued this, he would need to demonstrate a link between a protected disclosure and his dismissal. This might be possible if John believed the employer retaliated against him because he raised reasonable concerns of malpractice with the new IT system, abetted by inadequate resources. John would also have to demonstrate the disclosure was in the public interest (i.e., the IT system relates to organisational finances, which has stakeholder impact) (PIDA, 1998).
Alternatively, if John pursued an injunction, he would have to demonstrate that the employer’s threat to terminate his employment immediately caused significant stress and anxiety, impacting his health and well-being. An injunction would prevent John’s employer from terminating him. However, injunctions are seldom granted and require compelling evidence to sustain as a proportionate remedy.
- Employment Rights Act 1996 (ERA). UK Parliament. https://www.legislation.gov.uk/ukpga/1996/18/contents
- Public Interest Disclosure Act 1998 (PIDA). (1998). Retrieved 2 February 2023, from https://www.legislation.gov.uk/ukpga/1998/23/contents
Q2. "How would you advise him to proceed now?"
With reference to the given case study, four actionable steps are advisable: (1) ‘assemble the evidence’, John should create detailed records of the dates, times, and subject-matter of all conversations and interactions with the Finance Director and Managing Director (ACAS, 2021); (2) ‘attempt resolution’, John should venture to resolve the issue informally with the Finance Director and Managing Director or involve the organisation’s HR department, this will allow him to emphasise his stated notice period at interview was three-months and immediate termination would be a breach of contract (ACAS, 2021); (3) ‘raise a grievance’, if John is unable to resolve the matter as aforementioned, he may want to raise a formal grievance to have it investigated by the organisation; and (4) ‘consider the alternatives’, if John is dismissed or the issues remain unresolved, he could appeal the dismissal, negotiate a settlement agreement, find alternative employment, or pursue an employment tribunal claim (Hassan, 2016).
- ACAS. (2021). Dismissals. Retrieved 18 February 2023, from https://www.acas.org.uk/dismissals
- Hassan, K. (2016). A Critical Analysis of Employment Law. Global Journal of Politics and Law Research, 4(2), 67-80. https://www.eajournals.org/journals/global-journal-of-politics-and-law-research-gjplr/vol-4-issue-2-march-2016/a-critical-analysis-of-employment-law/