16: Termination of Employment Flashcards

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1
Q

What are the two separate but overlapping types of claim on termination of employment recognised by UK employment law?

A

Wrongful dismissal and unfair dismissal.

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2
Q

What is the reason for the majority of dismissals?

A

Redundancy.

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3
Q

What is an employee entitled to if made redundant?

A

A statutory redundancy payment.

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4
Q

What is a wrongful dismissal claim?

A

A claim for breach of contract, because the employer has not terminated the employment contract in accordance with its terms.

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5
Q

What is an implied term in most employment contracts regarding termination notice where no period of notice is stated?

A

Each party is entitled to be given reasonable notice of termination by the other.

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6
Q

How long is the statutory minimum notice period according to s86?

A

Up to two years: at least one week’s notice;

Between two and 12 years: one week’s notice for each year of continuous employment;

More than 12 years: 12 weeks’ notice.

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7
Q

What is a fixed-term contract and what if it is terminated early without notice?

A

A contract that has a specified end date, and if terminated early without notice, may entitle the employee to claim wrongful dismissal.

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8
Q

What is required from the conduct of the employer for an unfair dismissal claim?

A

The employer must not have acted reasonably and followed appropriate procedures.

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9
Q

What constitutes immediate dismissal for gross misconduct?

A

Conduct by the employee that is a repudiatory breach of the contract, such as theft.

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10
Q

What is the employer entitled to do if an employee commits gross misconduct?

A

Terminate the contract immediately without notice.

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11
Q

What governs statutory unfair dismissal?

A

Employment Rights Act 1996 (ERA 1996).

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12
Q

What happens if an employee resigns without giving the required notice?

A

They may be liable to pay damages to their employer for breach of contract.

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13
Q

Can an employee resign and still claim for wrongful dismissal?

A

Yes, if the employer has committed a repudiatory breach.

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14
Q
A
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15
Q

What is a repudiatory breach by the employer?

A

A serious breach such as failing to pay the employee or undermining the implied duty of mutual trust and confidence.

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16
Q

What is a remedy for wrongful dismissal?

A

Claiming damages to put the employee back in the position they would have been if the contract had been properly performed.

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17
Q

What is specific performance in employment contracts?

A

It is not available, meaning the employer will not be ordered to reinstate the employee.

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18
Q

What does PILON stand for and what is its advantage?

A

Payment in Lieu of Notice; allows the employer to terminate the contract immediately by making the required payment.

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19
Q

Are statutory claims for unfair dismissal available to workers who are not employees?

A

No, they are only available to employees.

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20
Q

What is an unfair dismissal claim?

A

A statutory claim under ERA 1996 focusing on the employee’s right to be treated fairly.

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21
Q

What is the difference between a wrongful dismissal and an unfair dismissal?

A

Wrongful: contractual reason
Unfair: statutory reason under ERA 1996

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22
Q

What must an employee prove in an unfair dismissal claim?

A

That they are eligible and have been dismissed for one of the five permitted reasons.

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23
Q

What are the two separate but overlapping types of claim on termination of employment recognized by UK employment law?

A

Wrongful dismissal and unfair dismissal.

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24
Q

What makes a dismissal for redundancy unfair?

A

If the employer has failed to act reasonably.

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25
Q

What is required for an unfair dismissal claim?

A

The employer must not have acted reasonably and followed appropriate procedures.

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26
Q

What is the basic eligibility condition for an unfair dismissal claim?

A

The employee must have been continuously employed for two years at the date of their dismissal.

27
Q

What are the types of dismissal recognized for unfair dismissal claims?

A

Dismissal by the employer, constructive dismissal, and non-renewal of a fixed-term contract.

28
Q

What are the five potentially fair reasons for dismissal under s98?

A

Capability or qualifications of the employee, conduct of the employee, redundancy, contravention of a statutory enactment, and some other substantial reason.

29
Q

What does “capability” refer to in dismissal cases?

A

The employee’s ability to do their job.

30
Q

Can ill-health be considered under “capability” for dismissal?

A

Yes, if it affects the employee’s ability to do their job.

31
Q

When is conduct outside employment relevant for dismissal?

A

If it has a direct bearing on the employee’s fitness to do their job.

32
Q

What is the importance of redundancy in dismissal cases?

A

An employee made redundant will usually be entitled to a statutory redundancy payment and may have a claim for unfair dismissal if the redundancy was not handled reasonably.

33
Q

What is a situation where dismissal may be for “illegality”?

A

When a foreign employee loses a work permit necessary to work in the UK.

34
Q

What is an example of “some other substantial reason” for dismissal?

A

Reorganization of business not meeting redundancy criteria but requiring employee termination for fair operation.

35
Q

What must employers do to justify a dismissal under “capability”?

A

Ensure the employee understands the required standards, provide warnings, and support improvement efforts.

36
Q

What does the ACAS Code of Practice provide?

A

Best practice guidelines for disciplinary and grievance procedures, including giving written statements, holding meetings, and providing appeal procedures.

37
Q

What does s10 of the Employment Relations Act 1999 provide?

A

The right for an employee to be accompanied by a colleague or trade union official at a disciplinary or grievance hearing.

38
Q

What happens if an employer fails to follow the ACAS Code?

A

The employment tribunal may increase an award up to 25% for unfair dismissal if the employer has not followed the Code.

39
Q

What is a claim for unfair dismissal?

A

A statutory claim under ERA 1996 focusing on the employee’s right to be treated fairly.

40
Q

What must an employee prove in an unfair dismissal claim?

A

That they are eligible and have been dismissed.

41
Q

What must the employer do in cases of gross misconduct?

A

Carry out a reasonable investigation of the facts and have a reasonable belief that the employee is guilty of misconduct.

42
Q

What should an employer do before dismissing for capability or misconduct?

A

Give the employee a final written warning and make it clear they will be dismissed if their behavior does not improve.

43
Q

What is required for redundancy to be fair?

A

The employer must warn employees, consult with them, and ensure adequate information is provided.

44
Q

What is collective redundancy?

A

When an employer dismisses 20 or more employees within 90 days and must consult with employee representatives and notify the relevant government department.

45
Q

What is the basic award for unfair dismissal?

A

A statutory formula based on the employee’s age, length of service, and weekly pay.

46
Q

What does the compensatory award include?

A

Lost net wages, future net wages, loss of other benefits, and a nominal sum for loss of statutory protection.

47
Q

What are some situations where dismissal is automatically unfair?

A

Dismissal connected with discrimination, pregnancy, reporting illegal practices, trade union activities, or asserting statutory rights.

48
Q

What are the time limits for bringing a dismissal claim in an employment tribunal?

A

Three months less one day from the date of dismissal, with a requirement to contact ACAS for conciliation.

49
Q

What is redundancy?

A

Defined by s139 ERA 1996 as a reduction in the workforce due to business closure or reduced need for employees.

50
Q

Who is eligible for a redundancy payment?

A

Employees with two years’ continuous employment who have been made redundant.

51
Q

What must an employer prove to avoid paying redundancy?

A

That the employee was dismissed for one of the other potentially fair reasons and acted reasonably.

52
Q

What must an employer do to avoid wrongful or unfair dismissal in redundancy cases?

A

Consult with employees, consider alternatives, adopt a fair basis for selection, and provide proper notice.

53
Q

What is the purpose of TUPE 2006?

A

To protect employees’ rights when a business is transferred to a new owner.

54
Q

When does TUPE 2006 apply?

A

When there is a transfer of an undertaking or business, or part of an undertaking or business, as an economic entity retaining its identity.

55
Q

What is considered a transfer of undertaking under TUPE 2006?

A

The transfer of a business as a whole, not just individual assets.

56
Q

What is outsourcing in the context of TUPE 2006?

A

When a business outsources work to another company to focus on core activities, resulting in a service provision change.

57
Q

What happens if a cleaning company (C) ceases to work under the cleaning contract and it is outsourced to a new company (D)?

A

TUPE 2006 will apply to protect the employees of the original cleaning company (C).

58
Q

What is the effect of a transfer under TUPE 2006?

A

Employees are automatically transferred to the new business or service provider on the same terms, preserving their continuity of service.

59
Q

What happens if an employee objects to the transfer under TUPE 2006?

A

Their employment is terminated automatically, and they have no right to claim against the original or new employer.

60
Q

When is dismissal because of a transfer considered automatically unfair?

A

If the employee is dismissed before or after the transfer because of the transfer.

61
Q

What are “economic, technical or organisational reasons” in the context of redundancy?

A

Reasons involving changes in the workforce related to the transfer that may not automatically make a dismissal unfair.

62
Q

Who are transferred employees under TUPE 2006?

A

All employees employed by the transferring employer immediately before the transfer or who would have been if not already dismissed because of the transfer.

63
Q

Are workers who are not employees covered by TUPE 2006?

A

No, only employees benefit from the provisions of TUPE 2006 concerning dismissals and redundancies.

64
Q

What is the main point of TUPE 2006 in relation to employee rights?

A

To ensure employees’ contracts are automatically transferred to the new owner or service provider with preserved terms and conditions.