Topic 18: Employment Law: Regulation on Dismissals

Question 1

Explain the concept of constructive unfair dismissal.

Answer 1

It enables an employee to claim unfair dismissal even where they have not been ‘dismissed.’

• The employer must have breached a fundamental term of the contract and the employee must have accepted this repudiation.
  e. g. unilateral reduction in pay and failure to provide a safe system of work or suitable working environment.

Question 2

What is meant by the term Unfair Dismissal

Answer 2

Unfair dismissal can be when employer doesn’t :

• have a good reason for dismissing you
• follow the company’s formal disciplinary or dismissal process (or the statutory minimum

Question 3

What are 5 reasons for potentially fair reasons to dismiss an employee and examples?

Answer 3

• the capability or qualifications of the employee (becomes incompetent/ill so cant continue)
• the conduct of the employee (fighting, stealing, poor timekeeping etc. depends on company policy)
• that the employee was made redundant (as long as notice periods etc have been done in line with contract its fine)
• that to continue the employment would amount to a contravention of a statute. (cannot have criminal record if teacher etc would go against laws)
• some other substantial reason of a kind to justify dismissal

All within Section 98 of ERA.

Question 4

Identify the Remedies available

Answer 4

• Reinstatement - get put back into position
• Re-engagement - as close to the same job as possible as too long may have passed since.
• Compensation

Question 5

Whats a case that highlights that seniority should be involved in whether redundant?

Answer 5

Farthing v Midland House Stores (1974)

It was held that seniority should be considered in redundancy, if it is not, the redundancy may be considered an unfair dismissal.

Question 6

What case law established that ‘band of reasonable responses to the employee’s conduct which a reasonable employer could adopt’ can be used for reason for unfair dismissal.

Answer 6

Iceland Frozen Foods v Jones (1983)

Question 7

What can the case Junk v Kuhnel (2005) be applied to.

Answer 7

Consulting employees before they are dismissed/made redundant.

The European Court of Justice held that the consultation should take place when the employer intends to make redundancies rather than wait until the notices of dismissal are sent to the employees.

Question 8

What case is used when an employer has failed to carry out its consultation requirements?

Answer 8

Susie Radin Ltd v GMB (2004)

When the tribunal is assessing the compensation, it should be of an amount to deter future employers from failing to follow the consultation requirements.