16: Termination of Employment Flashcards
What are the two separate but overlapping types of claim on termination of employment recognised by UK employment law?
Wrongful dismissal and unfair dismissal.
What is the reason for the majority of dismissals?
Redundancy.
What is an employee entitled to if made redundant?
A statutory redundancy payment.
What is a wrongful dismissal claim?
A claim for breach of contract, because the employer has not terminated the employment contract in accordance with its terms.
What is an implied term in most employment contracts regarding termination notice where no period of notice is stated?
Each party is entitled to be given reasonable notice of termination by the other.
How long is the statutory minimum notice period according to s86?
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.
What is a fixed-term contract and what if it is terminated early without notice?
A contract that has a specified end date, and if terminated early without notice, may entitle the employee to claim wrongful dismissal.
What is required from the conduct of the employer for an unfair dismissal claim?
The employer must not have acted reasonably and followed appropriate procedures.
What constitutes immediate dismissal for gross misconduct?
Conduct by the employee that is a repudiatory breach of the contract, such as theft.
What is the employer entitled to do if an employee commits gross misconduct?
Terminate the contract immediately without notice.
What governs statutory unfair dismissal?
Employment Rights Act 1996 (ERA 1996).
What happens if an employee resigns without giving the required notice?
They may be liable to pay damages to their employer for breach of contract.
Can an employee resign and still claim for wrongful dismissal?
Yes, if the employer has committed a repudiatory breach.
What is a repudiatory breach by the employer?
A serious breach such as failing to pay the employee or undermining the implied duty of mutual trust and confidence.
What is a remedy for wrongful dismissal?
Claiming damages to put the employee back in the position they would have been if the contract had been properly performed.
What is specific performance in employment contracts?
It is not available, meaning the employer will not be ordered to reinstate the employee.
What does PILON stand for and what is its advantage?
Payment in Lieu of Notice; allows the employer to terminate the contract immediately by making the required payment.
Are statutory claims for unfair dismissal available to workers who are not employees?
No, they are only available to employees.
What is an unfair dismissal claim?
A statutory claim under ERA 1996 focusing on the employee’s right to be treated fairly.
What is the difference between a wrongful dismissal and an unfair dismissal?
Wrongful: contractual reason
Unfair: statutory reason under ERA 1996
What must an employee prove in an unfair dismissal claim?
That they are eligible and have been dismissed for one of the five permitted reasons.
What are the two separate but overlapping types of claim on termination of employment recognized by UK employment law?
Wrongful dismissal and unfair dismissal.
What makes a dismissal for redundancy unfair?
If the employer has failed to act reasonably.
What is required for an unfair dismissal claim?
The employer must not have acted reasonably and followed appropriate procedures.
What is the basic eligibility condition for an unfair dismissal claim?
The employee must have been continuously employed for two years at the date of their dismissal.
What are the types of dismissal recognized for unfair dismissal claims?
Dismissal by the employer, constructive dismissal, and non-renewal of a fixed-term contract.
What are the five potentially fair reasons for dismissal under s98?
Capability or qualifications of the employee, conduct of the employee, redundancy, contravention of a statutory enactment, and some other substantial reason.
What does “capability” refer to in dismissal cases?
The employee’s ability to do their job.
Can ill-health be considered under “capability” for dismissal?
Yes, if it affects the employee’s ability to do their job.
When is conduct outside employment relevant for dismissal?
If it has a direct bearing on the employee’s fitness to do their job.
What is the importance of redundancy in dismissal cases?
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.
What is a situation where dismissal may be for “illegality”?
When a foreign employee loses a work permit necessary to work in the UK.
What is an example of “some other substantial reason” for dismissal?
Reorganization of business not meeting redundancy criteria but requiring employee termination for fair operation.
What must employers do to justify a dismissal under “capability”?
Ensure the employee understands the required standards, provide warnings, and support improvement efforts.
What does the ACAS Code of Practice provide?
Best practice guidelines for disciplinary and grievance procedures, including giving written statements, holding meetings, and providing appeal procedures.
What does s10 of the Employment Relations Act 1999 provide?
The right for an employee to be accompanied by a colleague or trade union official at a disciplinary or grievance hearing.
What happens if an employer fails to follow the ACAS Code?
The employment tribunal may increase an award up to 25% for unfair dismissal if the employer has not followed the Code.
What is a claim for unfair dismissal?
A statutory claim under ERA 1996 focusing on the employee’s right to be treated fairly.
What must an employee prove in an unfair dismissal claim?
That they are eligible and have been dismissed.
What must the employer do in cases of gross misconduct?
Carry out a reasonable investigation of the facts and have a reasonable belief that the employee is guilty of misconduct.
What should an employer do before dismissing for capability or misconduct?
Give the employee a final written warning and make it clear they will be dismissed if their behavior does not improve.
What is required for redundancy to be fair?
The employer must warn employees, consult with them, and ensure adequate information is provided.
What is collective redundancy?
When an employer dismisses 20 or more employees within 90 days and must consult with employee representatives and notify the relevant government department.
What is the basic award for unfair dismissal?
A statutory formula based on the employee’s age, length of service, and weekly pay.
What does the compensatory award include?
Lost net wages, future net wages, loss of other benefits, and a nominal sum for loss of statutory protection.
What are some situations where dismissal is automatically unfair?
Dismissal connected with discrimination, pregnancy, reporting illegal practices, trade union activities, or asserting statutory rights.
What are the time limits for bringing a dismissal claim in an employment tribunal?
Three months less one day from the date of dismissal, with a requirement to contact ACAS for conciliation.
What is redundancy?
Defined by s139 ERA 1996 as a reduction in the workforce due to business closure or reduced need for employees.
Who is eligible for a redundancy payment?
Employees with two years’ continuous employment who have been made redundant.
What must an employer prove to avoid paying redundancy?
That the employee was dismissed for one of the other potentially fair reasons and acted reasonably.
What must an employer do to avoid wrongful or unfair dismissal in redundancy cases?
Consult with employees, consider alternatives, adopt a fair basis for selection, and provide proper notice.
What is the purpose of TUPE 2006?
To protect employees’ rights when a business is transferred to a new owner.
When does TUPE 2006 apply?
When there is a transfer of an undertaking or business, or part of an undertaking or business, as an economic entity retaining its identity.
What is considered a transfer of undertaking under TUPE 2006?
The transfer of a business as a whole, not just individual assets.
What is outsourcing in the context of TUPE 2006?
When a business outsources work to another company to focus on core activities, resulting in a service provision change.
What happens if a cleaning company (C) ceases to work under the cleaning contract and it is outsourced to a new company (D)?
TUPE 2006 will apply to protect the employees of the original cleaning company (C).
What is the effect of a transfer under TUPE 2006?
Employees are automatically transferred to the new business or service provider on the same terms, preserving their continuity of service.
What happens if an employee objects to the transfer under TUPE 2006?
Their employment is terminated automatically, and they have no right to claim against the original or new employer.
When is dismissal because of a transfer considered automatically unfair?
If the employee is dismissed before or after the transfer because of the transfer.
What are “economic, technical or organisational reasons” in the context of redundancy?
Reasons involving changes in the workforce related to the transfer that may not automatically make a dismissal unfair.
Who are transferred employees under TUPE 2006?
All employees employed by the transferring employer immediately before the transfer or who would have been if not already dismissed because of the transfer.
Are workers who are not employees covered by TUPE 2006?
No, only employees benefit from the provisions of TUPE 2006 concerning dismissals and redundancies.
What is the main point of TUPE 2006 in relation to employee rights?
To ensure employees’ contracts are automatically transferred to the new owner or service provider with preserved terms and conditions.
