terminating the modern employment relationship Flashcards
what are the five methods for terminating the MER?
- performance / fixed term completed (contract ends, potential to negotiate extension)
- mutual agreement (termination by MA. employee & employer had enough of each other. draw up another contract walk away)
- frustration (where something occurs beyond your control making it difficult to continue contract)
- resignation (leave job according to terms of contract)
- dismissal (getting fired)
what are the four types of dismissal?
- lawful
- wrongful
- unfair
- redundancy
what are the three of types of lawful dismissal?
- with notice : tends to be due to conduct or capability
- payment in lieu : “garden leave”
- without notice : serious problem & misconduct occurred
what is “with notice” lawful dismissal?
tends to be due to conduct or capability.
- check usual warning processes are complied with
- check terms of contract for notice period or statutory minimum will apply
- ensure proper grievance procedure is followed (ACAS code suggests 2v1w warning before dismissal reached)
what is the statutory minimum notice period for terminating the MER?
none within 1st month
1 week for first 2 years
1 week for each year between 2 - 12 years
12 weeks if over 12 years
what is “payment in lieu” lawful dismissal?
garden leave. happens when job wants you to leave immediately, but have to honour notice period. get paid for not working. happens particularly in industries that deal with confidential / high security info
- 3 months notice period gains 3 months payment in lieu
- removes risk for employer of sensitive info being leaked
what was the Shelton v Morrisons case?
employee leaked colleagues payroll info online. shows importance of payment in lieu dismissal since dismissal compromised sensitive & confidential info
what is “without notice” lawful dismissal?
happens when serious misconduct has occurred.
- gross infidelity (leaking trade secrets to competitors)
- disrepute (ruining rep of firm. not following morality clauses)
- serious misconduct (theft, fraud, violence. flexible definition)
- gross negligence (actions resulting in serious damage. flexible definition)
- serious incapacity (through drugs or alcohol)
- serious breach of safety / confidence
what is wrongful dismissal?
deals with terms of contract, so is common law issue. available to all with a contract. happens when there is a breach of contract.
what is an example of wrongful dismissal?
breach of express term : notice period breach by employer
breach of implied term : statutory obligation of respect not followed by employer
what happens if there is a wrongful dismissal?
3 C’s :
- court action required
- 6 yr cut off for litigation
- remedy : compensation
Contract issue –> go to Court –> get Compensation
what is unfair dismissal?
statutory issue. act only applies to employees with qualifying period of employment. dismissal unfair on the employee.
what is an example of unfair dismissal?
- unfair reason : fired for having membership of TU, being pregnant, being whistleblower
- manner of dismissal : not given sufficient warning by employer (2v1w)
- constructive dismissal : when almost forced into resignation as working life made so difficult (manager making hateful comments towards employee)
what happens if there is an unfair dismissal?
- early claim essential (within 3 months)
- contact employment tribunal
remedy : - reinstated (given job back)
- re-engaged (same firm, diff job / branch / manager)
- compensation (expected to minimise losses)
what is redundancy?
statutory issue. happens when someone is fired because the post disappears, not the work. work can be simply redistributed. also happens when employer ceases to trade or nature of business is changing (eg. humans replaced by tech)
