This Practice Note provides guidance for identifying the reason for dismissal and, where it is established that there is a potentially fair reason for dismissal, how a tribunal will go about deciding whether the employer’s actions in dismissing the employee fell within the range or band of reasonable responses of a reasonable employer. It provides a list of the statutory potentially fair reasons for dismissal and explains what an automatically unfair dismissal is, and looks at how a tribunal might deal with a claim where it is alleged that the reason for a dismissal is both unfair and discriminatory, and where, in the course of a hearing, the true reason for the dismissal emerges as different to the one originally pleaded. It also discusses the impact of Codes of Practice and the European Convention on Human Rights (ECHR) on the fairness of a dismissal. Once it is established that a claimant has the right to bring an unfair dismissal claim—ie, that they were an employee, they were dismissed, the claim was presented in time (and the early conciliation

Redundancy is a potentially fair reason for dismissal under section 98(2) of the Employment Rights Act 1996 (ERA 1996). However, as with other potentially fair reasons, the fairness of a redundancy dismissal is to be determined by the test of whether an employer's decision to dismiss for that reason falls within the band of reasonable responses of a reasonable employer in those circumstances and in that line of business. Failure to follow a fair procedure when dismissing an employee for redundancy will normally render the dismissal unfair. If an employer is proposing to dismiss as redundant 20 or more employees at one establishment within any period of 90 days or less, there is also a statutory obligation to consult collectively (see Practice Notes: Collective redundancy—the triggers for the statutory consultation obligations and Collective redundancy—statutory information and consultation obligations). For more detailed guidance on a fair procedure to be followed where statutory collective consultation obligations apply, or where it is otherwise necessary to consult with union or other employee representatives, see Practice Note: Redundancy—fair procedure: collective consultation

This Practice Note examines the potentially fair reason for dismissal: some other substantial reason, sometimes known as ‘SOSR’ which may be potentially fair dismissals under section 98(1)(b) of the Employment Rights Act 1996 (ERA 1996). It considers the circumstances in which some other substantial reason may apply, including in the context of business reorganisations leading to changes in job duties or terms and conditions, expiry of a fixed-term contract, breakdown in work relations, other factual examples of some other substantial reason from case law and where substantial reasons are imposed by statute, eg dismissal of a maternity leave cover or replacement. Even if the reason for dismissal does not fall within one of the specific potentially fair reasons set out in ERA 1996, s 98(2), the dismissal may still be fair if the reason is shown to have been some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. Substantial means 'more than whimsical or capricious'. As with other potentially

This is frequently used in drafting commercial agreements. The term may be the result of considerable negotiation and often represents a compromise.

A way of preventing discrimination against disabled employees by making changes to ensure that they are not at a disadvantage.

A: Employee information Employee [Insert name] Role [Insert role] Period of absence [State period of absence, or for intermittent absence number of days and period over which this absence has occurred] Record completed by [Insert name] B: Potential contractual adjustments Reduce working hours [State what you have considered and your conclusions or

This Practice Note considers the terms ‘best endeavours’, ‘all reasonable endeavours’ and ‘reasonable endeavours’ which are frequently used in commercial agreements. Contracting parties usually have a polarised approach to ‘endeavours’ terms, with one party seeking to impose the most onerous form of the obligation on the other party, and the other party trying to resist it. The final position is usually reached following considerable negotiation and often represents a compromise where one party has argued that it is not reasonable for it to be placed under an absolute obligation. This Practice Note considers the relevant case law and the meanings that have been given to the terms: • best endeavours • all reasonable endeavours, and • reasonable endeavours It also provides guidance for commercial lawyers to consider when drafting and negotiating such obligations at Drafting endeavours clauses below. See also: Drafting and negotiating an endeavours obligation—checklist. Endeavours obligations are also covered in Precedent: Navigating grey areas in commercial contracts—training materials. Absolute obligations compared to ‘endeavours’ obligations The most onerous obligation which can be imposed

Pensions analysis: The Deputy Pensions Ombudsman has rejected a complaint about the imposition of unreasonable conditions on a transfer to a QROPS. Martin Scott of gunnercooke LLP looks at the decision.

A taxpayer will not be liable for a penalty for late payment of tax if they have a reasonable excuse for failing to comply with the legislation. For details of the penalties for late payment of tax, including specific information on forthcoming changes for sole traders and landlords becoming mandated to Making Tax Digital for Income Tax, see Practice Notes: Late payment penalties—income tax, capital gains tax and corporation tax and Late payment penalties—PAYE, NICs and construction industry scheme. The term reasonable excuse is not defined in the legislation and therefore its meaning is continually being reassessed by the courts. What constitutes a reasonable excuse should be seen 'in light of all the circumstances of the particular case'. Historically, HMRC took a very hard line on what constituted a reasonable excuse for the late filing of a tax return or the late payment of tax. As part of HMRC's review of the implementation of its powers introduced since 2012, stakeholders communicated concerns that HMRC's approach to penalties could at times be heavy-handed and

Information Law analysis: The central issue on the appeal was whether, in general, a person under criminal investigation has a reasonable expectation of privacy in respect of information relating to that investigation. In a unanimous judgment given by Lord Hamblen and Lord Stephens, the Supreme Court found that in general, a person does have such an expectation. However, the judgment is careful to emphasise that this was merely a ‘legitimate starting point’ para [144] and not a legal presumption. The question as to whether there is a reasonable expectation of privacy in relation to this category of information is fact sensitive and should be determined by an evaluation of all the circumstances of a case. The Supreme Court’s decision affirms almost a decade of first instance authority and will be especially welcomed by claimant lawyers. Written by Percy Preston, legal assistant at Brett Wilson LLP.

PI & Clinical Negligence analysis: JBX v Frimley Health NHS Foundation Trust applies the ‘reasonable needs’ test to catastrophic-injury care and provides an early worked example of child ‘lost years’ damages following CCC v Sheffield Teaching Hospitals NHS Foundation Trust. The court rejected home-based care because JBX had not proved that it would reasonably meet the child’s complex and fluctuating needs, notwithstanding parental preference and awarded damages by reference to specialist residential provision. For lost years, it adopted ASHE average earnings, a 50% deduction for living expenses and retirement at 70. Practitioners should distinguish reasonable needs from best interests, scrutinise the evidential basis for proposed care regimes and marshal individualised evidence on future earnings and expenditure. Produced in partnership with Robert Parkin of Deka Chambers.

Commercial analysis: Anheuser-Busch International Inc v Commonwealth Brewery Ltd was an appeal to the Privy Council about whether three-and-a-half months’ notice was a reasonable period when terminating a long-running distributorship. The Board reviewed a range of authorities from commonwealth countries dealing with the law on implied terms requiring reasonable notice when ending commercial relationships of indefinite duration. The Board confirmed that reasonable notice helps enables an orderly winding-up of the relationship being terminated and allows the recipient of a notice of termination to make substantial progress towards alternative arrangements; it is not to preserve the recipient of notice’s profit stream or ensure the recipient has enough time to fully replace the lost business. The judgment provides a helpful overview of factors that are relevant to the assessment of what period is ‘reasonable’, including business dependence, dedicated resources, extraordinary sunk expenditure, third-party commitments and the difficulties created by continued performance during the notice period. The judgment will be of interest to practitioners handling disputes surrounding termination of distribution, agency, brokerage and supply agreements and whether reasonable notice needs to be given (and how long that ought to be in the circumstances). Written by Lucas Gregory, barrister at St John’s Buildings.