Dismissal or Termination of Employment Contract

Dismissal or Termination of traffic ContractThe electric arc or termination of an employment tailor by an employer may entitle an employee to seek redress through the coquets based on a finding of unconventional and/or inequitable discardal.The pertinent distinction surrounded by the two is that a claim for wrongful dismissal is essentially an allegation of br from each one of bargain, a common law action, whilst un decent dismissal is a dismissal committed in breach of relevant statutory provisions. In defence of such an action, an employer may adjure to argue that a dismissal was justified or indeed may wish to raise a defence of fair dismissal.Examination of legal authority in this highly contentious area of Employment Law will reveal the circumstances in which the dismissal of an employee may be deemed to be wrongful, fair or unfair.Dismissal in breach of contract may lead to a finding of wrongful dismissal. This may occur where an employee, with bulge out being afforde d the nonice, which their employment contract stipulates they are entitled to, is brush off. In fact some(prenominal) dismissal which is in breach of a contract of employment may be tantamount to a wrongful dismissal and this position is neatly dealt with by Smith and Thomas if a contract is for a fixed term, or expressly stated to be terminable only in certain ways, and it is end before the term expires or in an improper way, that may be a wrongful dismissal. More typical, however, is the case where the employer dismissed the employee with no or wanting(predicate) notice, or purported to dismiss him for cause where the facts did not justify such action.It should be noted that the Employment Rights Act (ERA) 1996, s.86(1) applies minimum notice periods to be given by an employer in terminating a contract of an employee who has been continuously employed for wholeness month or more. However, an employer may be liable for damages for wrongful dismissal where the contract of empl oyment specifies a longer notice period than that laid down by ERA 1996 and the employer in reliance on the statutory provisions, serves the minimum notice.The court may nonetheless import a intellectable notice period into a contract of employment as occurred in the decision of Hill v CA Parsons Co Ltd. In this case a chartered engineer had refused to join a trade union, despite his employers request for him to do so. The employer did not wish to dismiss the employee, but had negotiated terms with the union which required employees to join the union. The employer gave one months notice of dismissal., but should have tolerated three months notice under the relevant statutory provision at that time.It was held by the flirt of Appeal, by a majority decision, that reasonable notice in this case would have been between six and 12 months in length.In defence of an action for wrongful dismissal an employer may contend that the dismissal was justified and such a defence will break t hrough where, for example, the employees behaviour amounts to gross move.In accordance with s.94(1) of the ERA 1996, an employee has the right not to be unfairly dismissed. However, the first hurdle for an employee to overcome in an action for unfair dismissal is that he moldiness have been continuously employed by that employer for a period of at least one year s.108(1), ERA 1996.The employee must(prenominal) also show that he has been dismissed in accordance with one of the definitions of dismissal contained within the ERA 1996. Section 95 of the Act deals with the circumstances in which an employee is dismissed. The first situation under which an employee is dismissed is where the employment contract is simply terminated by the employer, whether with or without notice s.95(1)(a), ERA 1996. This type of dismissal is differently known as direct or express dismissal.Difficulties may arise in interpreting an employers words and whether or not these can be say to have amounted to a dismissal. In Tanner v Kean the words used by the employer were youre finished with me. It was held by the Employment Appeals Tribunal that the words used should not be interpreted to signify a dismissal by the employer and that the test was what a reasonable employee would understand from the words used. In fact bad nomenclature by the employer used to signify the employee leaving the work place, will not amount to a dismissal Futty v Brekkes. In this case the words kip down off were held not to constitute a dismissal, but it should be noted that such words were common in the dock yard workplace in question.The next category under which an employee is deemed to be dismissed by his employer is where an employees limited term contract terminates by virtue of the limiting showcase without being renewed. Sections 235(2A) and (2B) provide that a limited term contract is one which is not intended to be permanent. A limiting event in a contract for a fixed term authority the expiry of the term, in a contract made in contemplation of performance of a specific task means the performance of the task and in a contract which provides for termination on the occurrence of an event or the failure of an event means the occurrence of the event or the failure of the event.The third category of dismissal under s.95 of the ERA is where the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employers conduct s.95(1)(c), ERA 1996.This is otherwise known as constructive dismissal as ruff explained by Lord Denning MR in Western Excavating v Sharp If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as complete from any further performa nce. If he does so, then he terminates the contract by reason of the employers conduct. He is constructively dismissed.Lord Denning went on to explain that the conduct of the employer must be sufficiently serious to entitle the employee to leave at once and the Court of Appeal went to great lengths to stress that the employers conduct must have amounted to a repudiatory breach of the employment contract. This will occur where, for example, the employer breaches a fundamental term implied into employment contracts, to treat the employee with trust and confidence.In Stanley Cole (Wainfleet) Ltd v J F Sherridan the behaviour of the employer was held to open the door for a constructive dismissal claim as the employer issued a final warning to the employee for conduct which was considered to be minor in nature. As explained by Gwyneth Pitt This illustrates how the standards of acceptable behaviour have risen over the years, so that there is more likelihood of bad behaviour being held to set down mutual trust and confidence.It should be noted that even if an employee does not initially commence an action for constructive dismissal, where the employer commits repudiatory breaches of the contract, but remains in employment, the employee may heretofore rely on those breaches as establishing breach of trust and confidence, at a later date Lewis v Motor world Garages Ltd. In this case the Court of Appeal held that numerous, relatively minor repudiatory breaches could cumulatively amount to a breach of trust and confidence and that the employee could rely on earlier breaches committed by the employer, despite the employee initially having remained in employment following those breaches.It should be noted that before taking the draconian measure of dismissing an employee, an employer should follow the standard procedure set out in the Employment Act 2002, Schedule 2, Part 1. For example the employer should invite the employee to attend a meeting and must set out in make -up the employees alleged misconduct which has led to the dismissal. If the employer does not follow these procedures the employee will be regarded as unfairly dismissed unless the employer can show that would have decided to dismiss the employee even if he had followed the standard procedure.Upon the employee establishing that he meets the requirements of one years continuous employment and that he has been dismissed, the burden of proof shifts to the employer to establish the reason for the dismissal and that the reason falls within one of the fair reasons for dismissal, contained within s.98, ERA 1996.The first of the reasons relating to fairness relates to the capability or qualifications of the employee s.98(2)(a), ERA 1996. Capability means the employees capability assessed by reference to skill, aptitude, health or any other physical or mental quality (s.98(3)(a), ERA 1996) whilst qualifications relate to any degree, diploma, or other academic, skillful or professional quali fication relevant to the position held (s.98(3)(b), ERA 1996).The second reason relates to conduct (s.98(2)(b), ERA 1996) for which the ACAS Code of Practice on Disciplinary and account Procedures (2004) provides guidance. For example, the Code makes provision for a written warning to be given in the case of a first finding of misconduct, other than gross misconduct Para 21.However, where a warning would clearly not prevent an employee from committing the act of misconduct in future, dismissal in the absence of a warning may be held to be fair Retarded Childrens Aid Society v Day.Other factors which are considered fair reasons for dismissal are redundancy and that the employee could not persist in in his employment without breaching statute law s.98(2)(c) and (d), ERA 1996. Finally, a dismissal may be fair if it is for some other substantial reason of a kind such as to justify dismissal (s.98(1)(b), ERA 1996) and it shall be for a tribunal or court to determine whether a dismissal fair for some other substantial reason.In any case, whether or not the dismissal is construed to be fair will depend on whether, in the circumstances, the employer acted middling or unreasonably in treating the reason as a sufficient reason for dismissal s.98(4)(a), ERA 1996.In interpreting s.98(4), Lord Browne-Wilkinson in Iceland gelid Foods v Jones stated that in many cases there is a band of reasonable responses to the employees conduct within which one employer might reasonably take one view and another employer might reasonably take another view. His Lordship stated that the function of an employment tribunal is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.It should be noted that it is sufficient for the employer to postponement an honest belief, based on reasonable grounds, in the set of facts justifying dismissal. This posit ion is best explained by Lord Denning MR in Alidair Ltd v Taylor If a man is dismissed for stealing, as long as the employer honestly believed it on reasonable grounds, that is enough to justify dismissal. It is not essential for the employer to prove that he was in fact stealing. Whenever a man is dismissed for incapacity or incompetence it is sufficient that the employer honestly believed on reasonable grounds that the man is incapable or incompetent. It is not necessary for the employer to prove that he is in fact incapable or incompetent.If an employer fails to establish a fair reason for dismissal it is quite possible that an employee may copy in an action for unfair dismissal and the employer may in fact be liable for both wrongful and unfair dismissal in the alike action. However, provided that the employer follows the procedural safeguards contained within the Employment Act 2002 and the ACAS Code of Practice he should generally speaking, be safe in an action for unfair an d/ or wrongful dismissal.