CHAPTER 12 Unfair dismissal (1): Exclusions and the meaning of dismissal

1. CHAPTER 12 Unfair dismissal (1): Exclusions and the meaning of dismissal

2. Unfair dismissal (1): Exclusions and the meaning of dismissal Overview This section is concerned with the meaning of dismissal for statutory purposes and with the requirements that must be satisfied before an employee is entitled to protection against unfair dismissal.

3. Unfair dismissal (1): Exclusions and the meaning of dismissal There are hurdles to be overcome, such as the need to have one year’s continuous service in order to claim. A contract of employment can be ended in several different ways, such as termination with or without notice, by mutual agreement or by constructive dismissal.

4. Unfair dismissal (1): Exclusions and the meaning of dismissal UNFAIR DISMISSAL Every employee has the right not to be unfairly dismissed, although there are a number of exclusions and qualifications.

5. Unfair dismissal (1): Exclusions and the meaning of dismissal • This generally applies only to those working in great Britain at the time of dismissal. • They must have one year’s continuous service. • Retirement may be a potentially fair reason for dismissal.

6. Unfair dismissal (1): Exclusions and the meaning of dismissal • Continuity is to be calculated up to the effective date of termination in accordance with sections 210–219 ERA 1996. • Employees who are guilty of gross misconduct forfeit their entitlement to notice.

7. Unfair dismissal (1): Exclusions and the meaning of dismissal • If an employee is dismissed on medical grounds, only one month’s service is required. Where unlawful discrimination is being alleged, no minimum period of service is needed because the case will be brought under anti-discrimination legislation rather than ERA 1996.

8. Unfair dismissal (1): Exclusions and the meaning of dismissal An employee is to be treated as dismissed if the contract is terminated by the employer with or without notice, a limited-term contract expires without renewal, or the employee terminates it as a result of the employer’s conduct.

9. Unfair dismissal (1): Exclusions and the meaning of dismissal • It is vitally important not to confuse a warning of impending dismissal – for example, through the announcement of a plant closure – with an individual notice to terminate. • For notice to constitute a dismissal, the actual date of termination must be ascertainable.

10. Unfair dismissal (1): Exclusions and the meaning of dismissal Termination by mutual agreement does not amount to a dismissal at law, although tribunals will not find an agreement to terminate unless it is proved that the employee really did agree, with full knowledge of the implications. • Whether a mutual agreement is void because of duress is a matter for the employment tribunal.

11. Unfair dismissal (1): Exclusions and the meaning of dismissal Where a provision for automatic termination is introduced by way of a variation to a subsisting contract, it may be declared void if its effect is to exclude or limit the operation of ERA 1996.

12. Unfair dismissal (1): Exclusions and the meaning of dismissal Where an employer seeks volunteers for redundancy, those who are dismissed will be eligible for a payment despite their willingness to leave.

13. Unfair dismissal (1): Exclusions and the meaning of dismissal Employees are entitled to treat themselves as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the contract’s essential terms.

14. Unfair dismissal (1): Exclusions and the meaning of dismissal • In these circumstances the employer’s behaviour constitutes a repudiation of the contract and the employee accepts that repudiation by resigning.

15. Unfair dismissal (1): Exclusions and the meaning of dismissal In order to complain of unfair dismissal, one year’s continuous service is required, unless the dismissal is for an inadmissible reason.

16. Unfair dismissal (1): Exclusions and the meaning of dismissal Whether a person is qualified to complain of unfair dismissal or claim a redundancy payment must be answered by reference to the effective date of termination which, in the case of termination by notice, is the date on which notice expires, or otherwise the date on which termination takes effect.

17. Unfair dismissal (1): Exclusions and the meaning of dismissal Similarly, entitlement to a redundancy payment and the computation of it, together with the time-limit for submitting a claim, all depend on the ‘relevant date’ of dismissal. Thus, employers should ensure that there is no doubt as to what constitutes the effective or relevant date.