8 Termination of Employment (Part 1). Is it a dismissal? Resignation of the employee Mutual agreement Frustration of contract.

8 Termination of Employment

(Part 1)

Is it a dismissal?

• Resignation of the employee

• Mutual agreement

• Frustration of contract

Making a claim of unfair dismissal

Eligibility:

• Employees of the dismissing employer

• One year’s continuous service

• Illegal contract

• Not police officers

Potentially fair reasons for dismissal

• Lack of capability or qualifications

• Bad conduct

• Redundancy

• Statutory ban

• Some other substantial reason

• Retirement

Capability issues

Employer must

• Help employee try to improve

• Support performance with supervision and training

• Take due account of illness

Conduct

• Gross misconduct

• Suspension

• Summary dismissal

• Misconduct

• Warnings

Reasonableness

• The fact underlying the belief must be established

• The belief must be held on reasonable grounds, after an appropriate investigation

• The investigation must be reasonable, in the circumstances

Statutory ban

Examples:

Banned from driving when job involves driving

• Placed on sex offenders’ register when job is working with children

Some other substantial reason

Examples:

• Pressure from external source to dismiss

• Reorganisation of the business

• Mistaken belief

Retirement

• Retirement age

• Statutory procedure

Statutory dismissals and disciplinary procedure (DDP)

• Step 1 – letter setting out allegations

• Step 2 – meeting to discuss allegations

• Step 3 – possible appeal against decision

DDP

Modified version

• Step 1 – letter explaining reasons for dismissal

• Step 2 – possible appeal

Statutory grievance procedure

• Step 1 – write letter setting out grievance

• Step 2 – meeting to discuss grievance

• Step 3 – possible appeal against decision

Statutory grievance procedure

Modified version

• Step 1 – employee writes a letter setting out the grievance

• Step 2 – employer writes back with a response

Polkey defence

• DDP must be followed

• Would following additional company procedure have made any difference?

Gibbons Report

• Repeals the statutory procedures• Provides clear and simple guidelines for

employers on handling grievances and dismissals in the workplace

• Provides incentives for complying with the guidelines through the employment tribunals continuing to consider reasonableness of actions when making awards and cost orders

Disciplinary warnings

ACAS guidelines:

• Informal warning

• Formal warning (that remains on the employee’s record for six months)

• Final written warning (that remains on the employee’s record for 12 months)

• Dismissal

Right to be accompanied

• Trade union representative

• Colleague

Constructive dismissal

• There was a fundamental breach of the contract on the part of the employer

• The breach of the contract caused him or her to resign

• There was no significant delay in resigning

Automatically unfair dismissal

• Most require no qualifying period

• Not following DDP is automatically unfair dismissal – but the one-year qualifying period is still required

Remedies

• Compensation

• Re-instatement

• Re-engagement

Compensation

• Basic award

• Compensatory award

• Increases and deductions