8 termination of employment
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8 Termination of Employment. (Part 1). Is it a dismissal?. Resignation of the employee Mutual agreement Frustration of contract. Making a claim of unfair dismissal. Eligibility: Employees of the dismissing employer One year’s continuous service Illegal contract Not police officers.

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8 Termination of Employment

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8 termination of employment

8 Termination of Employment

(Part 1)


Is it a dismissal

Is it a dismissal?

  • Resignation of the employee

  • Mutual agreement

  • Frustration of contract


Making a claim of unfair dismissal

Making a claim of unfair dismissal

Eligibility:

  • Employees of the dismissing employer

  • One year’s continuous service

  • Illegal contract

  • Not police officers


Potentially fair reasons for dismissal

Potentially fair reasons for dismissal

  • Lack of capability or qualifications

  • Bad conduct

  • Redundancy

  • Statutory ban

  • Some other substantial reason

  • Retirement


Capability issues

Capability issues

Employer must

  • Help employee try to improve

  • Support performance with supervision and training

  • Take due account of illness


Conduct

Conduct

  • Gross misconduct

  • Suspension

  • Summary dismissal

  • Misconduct

  • Warnings


Reasonableness

Reasonableness

  • The fact underlying the belief must be established

  • The belief must be held on reasonable grounds, after an appropriate investigation

  • The investigation must be reasonable, in the circumstances


Statutory ban

Statutory ban

Examples:

Banned from driving when job involves driving

  • Placed on sex offenders’ register when job is working with children


Some other substantial reason

Some other substantial reason

Examples:

  • Pressure from external source to dismiss

  • Reorganisation of the business

  • Mistaken belief


Retirement

Retirement

  • Retirement age

  • Statutory procedure


Statutory dismissals and disciplinary procedure ddp

Statutory dismissals and disciplinary procedure (DDP)

  • Step 1 – letter setting out allegations

  • Step 2 – meeting to discuss allegations

  • Step 3 – possible appeal against decision


8 termination of employment

DDP

Modified version

  • Step 1 – letter explaining reasons for dismissal

  • Step 2 – possible appeal


Statutory grievance procedure

Statutory grievance procedure

  • Step 1 – write letter setting out grievance

  • Step 2 – meeting to discuss grievance

  • Step 3 – possible appeal against decision


Statutory grievance procedure1

Statutory grievance procedure

Modified version

  • Step 1 – employee writes a letter setting out the grievance

  • Step 2 – employer writes back with a response


Polkey defence

Polkey defence

  • DDP must be followed

  • Would following additional company procedure have made any difference?


Gibbons report

Gibbons Report

  • Repeals the statutory procedures

  • Provides clear and simple guidelines for employers on handling grievances and dismissals in the workplace

  • Provides incentives for complying with the guidelines through the employment tribunals continuing to consider reasonableness of actions when making awards and cost orders


Disciplinary warnings

Disciplinary warnings

ACAS guidelines:

  • Informal warning

  • Formal warning (that remains on the employee’s record for six months)

  • Final written warning (that remains on the employee’s record for 12 months)

  • Dismissal


Right to be accompanied

Right to be accompanied

  • Trade union representative

  • Colleague


Constructive dismissal

Constructive dismissal

  • There was a fundamental breach of the contract on the part of the employer

  • The breach of the contract caused him or her to resign

  • There was no significant delay in resigning


Automatically unfair dismissal

Automatically unfair dismissal

  • Most require no qualifying period

  • Not following DDP is automatically unfair dismissal – but the one-year qualifying period is still required


Remedies

Remedies

  • Compensation

  • Re-instatement

  • Re-engagement


Compensation

Compensation

  • Basic award

  • Compensatory award

  • Increases and deductions


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