Docstoc

202.205.89.79downloadmaterials2009sdiscipline

Document Sample
202.205.89.79downloadmaterials2009sdiscipline Powered By Docstoc
					Legal Environment

    Employment 4
   Unfair Dismissal
     Redundancy
Learning Objectives
Quick Review
Requirement for Notice
Common Law and Dismissal
Unfair Dismissal
Constructive Dismissal
Fair Dismissal
Remedies for Unfair Dismissal
                                2
Quick Review
An employee is someone who works under
a contract of employment
A contract of employment is a contract of
service (not a contract for services)




                                            3
Introduction
Another area in which statute law attempts
to protect employees relates to dismissal
from their employment
Part of the reason for the legislation was to
correct problems with the Common Law on
dismissal



                                                4
Requirement for Notice
If an employer wants to dismiss an
employee then he must give the employee
the period of notice stated in the contract of
employment
If the contract does not give a period, then
the Employment Relations Act 1996 applies



                                                 5
  Requirement for Notice (cont.)
Notice under the Employment Relations Act
 Where the employee has been continuously
 employed for between 1 month and 2 years,
 the period of notice is 1 week
 For employment of more than 2 years, then
 the employee should get 1 week’s notice
 for each year up to a maximum of 12
 weeks
                                             6
Requirement for Notice (cont.)
It is acceptable for the employer to pay
wages instead of giving notice

If the employee wants to end his contract
then he should give the period of notice
stated in his contract
If there is no period stated, then the
Employment Relations Act 1996 says that 1
week’s notice is required
                                            7
Common Law and Dismissal
An employer may dismiss an employee for
behaviour which is serious
In these situations, the employer does not
have to give the employee notice of
dismissal (known as summary dismissal)
Theft and violence are regarded as being
serious behaviour

                                             8
Common Law and Dismissal (cont.)
Misconduct may allow the employer to
dismiss without notice
It depends on the seriousness of the
misconduct and the previous behaviour of
the employee
A court decided that an employer could not
dismiss a man without notice for swearing
during an argument as he was, in general, a
good employee
                                              9
Unfair Dismissal
Under the Employment Relations Act 1996,
employees have the right to not be unfairly
dismissed
That means the employer has to show that it
was reasonable to dismiss the employee
The Act provides greater protection and
more remedies than Common Law

                                              10
Qualification for Benefits
Protection under the Employment Relations
Act is limited to employees
ie people employed under a contract of
service
This is one times when it may be important
to know if a person is an employee or not
In addition, the employee must have at least
1 year’s continuous employment
   Before 1999, it was 2 years
                                               11
  Dismissal
   To make a claim for unfair dismissal, the
   employee must show that s/he has been
   dismissed
   This can occur in 3 ways:
1. Express termination of the contract by the
   employer
2. Where the employee invites termination
   by his/her conduct
3. End of a fixed term contract
                                                12
Express Dismissal
The employer can dismiss the employee
expressly in writing or orally
If it is orally, then the words must make it
clear that the employer is firing the
employee
If it is not clear then the court will ask if a
reasonable employer or employee would
have thought the words indicated that
employment was being terminated
                                                  13
Employee’s Conduct
An employee may be dismissed where
his/her conduct or inaction invites
termination of the contract
For example, refusing to carry out a
reasonable instruction
Or being persistently late for work



                                       14
Expiration of Fixed Term Contract

If an employee is employed under a fixed
term contract (or one for a fixed event) and
the term ends and the contract is not
renewed, then that counts as dismissal of
the employee




                                               15
Reasons for Dismissal
Under the Employment Relations Act 1996,
an employer must give written reasons for
the dismissal to the employee if requested
If the employee requests written reasons,
they must be provided within 14 days
Failure to provide the reasons allows the
employee to complain to an Employment
Tribunal
                                             16
Constructive Dismissal
One of the most important protections for
employees in the area of unfair dismissal is
the idea of constructive dismissal
This means that the behaviour of the
employer gives the employee no choice but
to resign
This is intended to prevent situations where
the employer does not dismiss the employee
directly, but makes life so unpleasant for
him/her that s/he is forced to quit
                                               17
Constructive Dismissal (cont.)
For example, failing to investigate a
complaint of sexual harassment was held to
be constructive dismissal
Requiring an employee to relocate in terms
of his contract, but giving very short notice
and no financial support was also held to be
constructive dismissal


                                                18
Constructive Dismissal (cont.)
The employee does not have to resign
immediately, but can wait until s/he has
found another job




                                           19
Fair Dismissals
Once the employee has shown that s/he was
dismissed (actual dismissal or constructive
dismissal), the employer must show that the
dismissal was reasonable and, therefore, fair
To decide what is “reasonable”, a court look
at what a reasonable employer would have
done in the circumstances


                                                20
Fair Dismissals (cont.)
In deciding what is reasonable, courts also
consider factors such as:
 The length of service of the employee
 The employee’s previous disciplinary record

 Whether there was a disciplinary or grievance
  procedure, and whether it was followed




                                                  21
Fair Dismissals (cont.)
The Employment Relations Act 1996 also
gives guidance as to fair dismissals
These are
 Lack of capability or qualifications
 Conduct

 Redundancy

 Statutory provisions

 Some other substantial reason

                                         22
Lack of Capability or Qualifications

An employee may be fairly dismissed due
to a lack of capability or qualifications
“capability” includes “skill, aptitude, health
or any physical or mental quality”
“qualifications” includes “any degree,
diploma, or other academic, technical or
professional qualification relevant to the
position which the employee held”
                                                 23
Lack of Capability or Qualifications
(cont.)

The employer must show that not only did
the employee lack capability or
qualifications, but also that a reasonable
employer would also dismiss that employee
In deciding what is reasonable, a court will
look at the supervision and training of the
employee, and whether the employee was
given a chance to improve
                                               24
Conduct
In deciding if dismissal for misconduct is
fair, a court will look at the seriousness of
the misconduct and any disciplinary
procedures which the employer had
Instant dismissal is allowed for serious
misconduct
Less serious behaviour should usually be
dealt with under the employer’s disciplinary
procedure (eg a warning)
                                                25
Conduct (cont.)
Misconduct includes assault, refusal to obey
instructions, drunkenness, persistent
lateness, and failing to implement safety
procedures
An employer may have to carry out an
investigation to establish the guilt of the
employee


                                               26
Redundancy
Redundancy (ie the employee is no longer
required) is automatically a fair dismissal
However, the employer must show that
redundancy was the reason for the dismissal




                                              27
Statutory Restrictions
It is fair to dismiss an employee, if to keep
him/her would mean that the employer or
employee would be in breach of a statute
Eg: an employee is banned from driving and
his job requires him to drive a truck
Driving without a valid driving licence is a
breach of the Road Traffic Acts

                                                28
Statutory Restrictions (cont.)
However, the employer must still act
reasonably, so it may be necessary to see if
the employee can be given a different
position in the business




                                               29
Other Substantial Reason
If the reason for the dismissal does not
come under one of the previous categories
(lack of capability/qualifications,
misconduct, redundancy, or statutory
restrictions), the employer will have to
show that there was some other “substantial
reason” for the dismissal


                                              30
Other Substantial Reason (cont.)
There is no list of what qualifies as a “substantial
reason”, but some examples are
A conflict of personalities in the workplace
which is the fault of the employee
The employee did not disclose something
important at the job interview (eg mental illness)
Failure to accept changes in employment (so
long as the employer can show the changes were
necessary)
                                                       31
Special Situations
Dismissal is always unfair if it is for one of
the following reasons
Trade union membership or activity
   (this includes refusing to join a trade union)
Pregnancy or childbirth
Dismissal of only some employees during a
strike, or re-hiring only some within 3
months of the strike
   Dismissal or re-hiring of all is fair
                                                     32
Special Situations (cont.)
Dismissal due to pressure being brought on
the employer by other employees or a trade
union (eg threatening to strike)




                                             33
Remedies
If an Employment Tribunal finds that a
dismissal was unfair, it can make an order
for
 Re-instatement
 Re-engagement

 Compensation




                                             34
Re-instatement
Before making an order for reinstatement,
the tribunal should ask if that is what the
former employee wants
If re-instatement is made then the employee
must be employed on the same terms and
conditions as before
   as if there had been no dismissal


                                              35
Re-engagement
Re-engagement means that the employer
must take the employee back, but in another
similar position or suitable employment
The tribunal must consider whether this is
fair considering the behaviour of the
employee and whether there is another
suitable position


                                              36
Compensation
An award for compensation is made
 where an employer does not follow an order for
  re-instatement or re-engagement, or
 it is not practical to make such an order

The amount of compensation is based on
the age of the employee and the number of
years s/he has worked for the employer


                                                   37
Compensation (cont.)
The maximum number of years of
employment for this is 20
The amount of compensation may be
reduced if the employee’s behaviour
contributed to the dismissal




                                      38
Redundancy
Redundancy occurs where a business no
longer needs an employee
The law relating to redundancy is in the
Employment Relations Act 1996
The purpose of the Act is to give an
employee some compensation after losing
their job while they look for a new job

                                           39
Qualification for Benefits
Protection under the Employment Relations
Act is limited to employees
ie people employed under a contract of
service
This is one time when it may be important
to know if a person is an employee or not
In addition, the employee must have at least
2 years’ continuous employment
                                               40
Dismissal
In addition, the employee must show s/he
has been dismissed and the reason is
redundancy
There are 3 situations where the reason is
redundancy
   Cessation of the employer’s business
   Closure or change in place of work
   Diminishing requirement for employees
                                             41
Cessation of Employer’s Business

This applies where the business stops
operating either permanently or
temporarily




                                        42
Closure or Change in Place of Work

This is where the employer stops trading at
a particular place rather than stops trading
completely
However, redundancy may not apply if
there is a mobility clause in the employee’s
contract
   ie a clause that says the employer is entitled to
    require the employee to move to another city to
    work
                                                        43
Closure or Change in Place of Work
(cont.)

Also, it may not be redundancy if the new
place of work is in the same city and the
employees are offered work at the new
premises
The new place of work must be reasonably
easy to get to
And the new terms of employment must be
at least as good as the previous ones
                                            44
  Diminishing Requirement
   Here redundancy occurs
1. If the employer no longer needs so many
   employees because the business has less
   work, or
2. There are changes in the systems of work
   (eg new technology) which means few
   employees are needed to do the same
   work
                                              45
Alternative Employment
An employee cannot claim dismissal by
redundancy if the employer makes an offer
of suitable alternative employment which it
is unreasonable for the employee to refuse
What is “suitable” depends of the nature of
the alternative employment, the pay and
conditions, and the employees experience
and qualifications
                                              46
Alternative Employment (cont.)
Eg a headmaster of a school was made redundant
He was offered a position as a supply teacher (ie
an ordinary teacher who filled in for teachers who
were sick)
He would receive the same pay as he did as
headmaster
However, a tribunal said the offer was not suitable
as becoming an ordinary teacher was loss of status
compared to his position as headmaster
                                                      47
Procedure
An employer is under a duty to consult with
a recognised trade union or elected
employee representative before making
redundancies




                                              48
  Summary
   Under the Employment Relations Act 1996,
   employees have the right not be unfairly dismissed
   To make a claim for unfair dismissal, the
   employee must show that s/he has been dismissed
   This can occur in 3 ways:
1. Express termination of the contract by the
   employer
2. Where the employee invites termination by his/her
   conduct
3. Expiration of a fixed term contract
                                                        49
Summary (cont.)
One of the most important protections for
employees in the area of unfair dismissal is
the idea of constructive dismissal
This means that the behaviour of the
employer gives the employee no choice but
to resign



                                               50
Summary (cont.)
The Employment Relations Act 1996 also
gives guidance as to fair dismissals
These are
 Lack of capability or qualifications
 Conduct

 Redundancy

 Statutory provisions

 Some other substantial reason

                                         51
Summary (cont.)
If an Employment Tribunal finds that a
dismissal was unfair, it can make an order
for
 Re-instatement
 Re-engagement

 Compensation




                                             52
Summary (cont)
Redundancy occurs where a business no
longer needs an employee
The law relating to redundancy is in the
Employment Relations Act 1996
Protection under the Employment Relations
Act is limited to employees
In addition, the employee must have at least
2 years’ continuous employment
                                               53
Summary (cont.)
There are 3 situations where the reason for
dismissal is redundancy
 Cessation of the employer’s business
 Closure or change in place of work
 Diminishing requirement for employees

An employer is under a duty to consult with
a recognised trade union or elected
employee representative before making
redundancies
                                              54

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:3
posted:8/23/2012
language:English
pages:54