Research Trail

To: David Geller

From: You

Date: [ ]

Re: Hair Flair Hairdressers Limited

The Issues

A. Is Miss Bailey eligible to bring a claim for unfair dismissal?

B. Was the dismissal of Miss Bailey for misconduct unfair?

C. Was Miss Bailey wrongfully dismissed?

D. If Miss Bailey establishes a claim for unfair dismissal, what remedy will she
obtain?

E. If Miss Bailey establishes a claim for wrongful dismissal, what remedy will she
obtain?

Research strategy adopted

Issue A: Is Miss Bailey eligible to bring a claim for unfair dismissal?

Search terms used

“‘unfair dismissal’ and eligible”

Secondary sources

Ian Smith and others (eds), Harvey on Industrial Relations and Employment
Law (loose leaf, LexisNexis), accessed 22 November 2022.

Division D1, Unfair Dismissal:

 Chapter 1: Qualification: Who has the right to claim?, “A. Introduction to

qualification of the right to claim”.

 Chapter 1: Qualification: Who has the right to claim?, C. Exclusions from the
right to claim, “(2) Insufficient qualifying period”.

 Chapter 2: Termination by the Employer, “A. Introduction: The concept of

dismissal”.

 Chapter 5: Date of Dismissal and Effective date of Termination, “A.

Introduction to date of dismissal and effective date of termination”.
Updating

Using the “i” (Information) button on Lexis. Issue 3000 was published in August
2022.
Division D1 Unfair Dismissal stated the law as at 1 September 2022.

Primary sources

Employment Rights Act 1996 (ERA) – s 94 (online, Westlaw)

Green Tick = “Law in Force”.

Issue B: Was the dismissal of Miss Bailey for misconduct unfair?

Search terms used

“‘unfair dismissal’ and conduct”

Secondary sources

Harvey

Division D1, Unfair Dismissal:

 Chapter 9: Misconduct, Section B: The scope of misconduct, (1) Generally.

Cross reference to ss 98(1) and 98(2) ERA.

 Chapter 9: Misconduct, C. Conduct and reasonableness, “(3) The general

approach”.

Cross reference to British Home Stores Ltd v Burchell [1980] ICR 303 and
Graham v Secretary of State for Work and Pensions (Jobcentre Plus) [2012]
EWCA Civ 903, [2012] IRLR 759.

 Chapter 9: Misconduct, C. Conduct and reasonableness, (5) Reasonable

investigation: essential procedural safeguard, “(b) The concept of a
reasonable investigation”.

Cross reference to the ACAS Code of Practice.

 Chapter 9: Misconduct, C. Conduct and reasonableness, (6) Was dismissal a

fair sanction?, “(a) Non-substitution of views and the band of reasonable
sanctions”.

Primary sources

ERA – s 98 (online, Westlaw)

Green tick = “Law in Force”.

Burchell (online, Westlaw)

Graham (online, Westlaw)

Westlaw described Burchell as “significant”. Although Burchell has received mixed

judicial consideration, it is apparent from the Key Cases Citing that it has been cited
hundreds of times, generally positively. It was approved in Graham, which has itself
received positive/neutral judicial consideration.

ACAS Code of Practice on Disciplinary and Grievance Procedures

Reviewed in Division S of Harvey.

Issue C: Was Miss Bailey wrongfully dismissed?

Search terms used

“wrongful dismissal”

Secondary sources

Harvey

“(c) Wrongful dismissal” (within Division AII Contract of Employment, Chapter 9:

Remedies for breach of contract, A. Employee common law and equitable remedies
for breach of contract, (1) Common law remedies for breach of contract).

Primary sources

N/A

Issue D: If Miss Bailey establishes a claim for unfair dismissal, what remedy
will she obtain?

Search terms

“remedies for unfair dismissal”

Secondary sources

Harvey

 Chapter 14: Remedies for Unfair Dismissal – Reinstatement and Re-

engagement), “A. Overview of chapters 14 and 15.

 Chapter 15: Remedies for Unfair Dismissal – Compensation, “A. Introduction

to Compensation”.

 Chapter 15: Remedies for Unfair Dismissal – Compensation, B. The Basic

Award, “(1) Calculation”.

Cross reference to s 227 ERA for statutory limit on a week’s pay.

 Chapter 15: Remedies for Unfair Dismissal – Compensation, D. The

Compensatory Award, “(2) The basic approach”.

 Chapter 15: Remedies for Unfair Dismissal – Compensation, D. The

Compensatory Award, “(3) Compensation must be just and equitable”.

Cross reference to ss 123(1) and 124(1ZA) ERA for statutory cap details.
  Chapter 15: Remedies for Unfair Dismissal – Compensation, D. The
Compensatory Award, (5) Determining the loss, “(b) Calculating the loss: in
respect of what period should the loss be calculated?”.

Cross reference to Polkey v AE Dayton Services Ltd [1988] AC 344.

 Chapter 15: Remedies for Unfair Dismissal – Compensation, D. The

Compensatory Award, (5) Determining the loss, “(c) Calculating the
loss: heads of compensation”.

 Chapter 15: Remedies for Unfair Dismissal – Compensation, “E. Section 3 of

Employment Act 2008 Uplift”.

Cross reference to se 207A of the Trade Union and Labour Relations

(Consolidation) Act 1992) (TULRCA).

Primary sources

ERA – sections 118-126 and 227 (online, Westlaw)

TULRCA – section 207A and schedule A2 (online, Westlaw)

Green tick for all provisions stating “Law in Force” (in some cases with
inconsequential amendments pending).

Polkey (online, Westlaw)

Positive/neutral judicial consideration - described as a “significant” case.

Issue E: If Miss Bailey establishes a claim for wrongful dismissal, what remedy
will she obtain?

Search terms used

Not applicable.

Secondary sources

Harvey

When researching issue C above, I had read: “(c) Wrongful dismissal” (within
Division AII Contract of Employment, Chapter 8: Remedies for breach of contract, A.
Employee common law and equitable remedies for breach of contract, (1) Common
law remedies for breach of contract).

Primary sources

N/A

[Word Count 815]