Dismissal Flashcards
(18 cards)
Dismissal
Wrongful Dismissal
2 (defintion and who can bring claim)
Common law claim for breach of contract
(Usually relates to Notice period)
Can be brought by **anyone **with a contract with employer inc workers a
Dismissal
Unfair Dismissal
1
Statutory claim under ERA 1996
(anyone who is an employee and been dismissed may have a claim unless it was for 1 of 5 fair reasons)
Right to be treated fairly, only in an ET
Dismissal/Wrongful Dismissal
If no express term, what is the contractual notice period?
1
“Reasonable notice”
Dismissal/Wrongful Dismissal
Statutory Minimum Notice Period under s86 ERA 1996
3 periods as per Length of Service
Up to 2 years- 1 weeks notice
2-12 years- 1 week for each year
12 years plus- 12 weeks notice
Dismissal/Wrongful Dismissal
When is immediate dismissal without notice acceptable?
1
After Gross Misconduct
(This is a repudiatory breach by the employee)
What qualifies as GM depends on the job
Dismissal/Wrongful Dismissal
What is the one scenario where an employee can resign and still claim for Wrongful Dismissal?
1
Repudiatory breach by employer
(e.g. failure to pay, uniaterally varying terms)
(continuing to work may signify acceptance so act quick)
Dismissal/Wrongful Dismissal
What is the usual remedy for Wrongful Dismissal?
1
Damages
Specific performance not available for employment contracts
Dismissal/Wrongful Dismissal
What is a PILON Clause?
1
Pay in Lieu of Notice
(states an employer can terminate immediatley without notice as long as they pay the noice period)
(if E commits repudiatory breach can’t rely on post-termination clause)
Dismissal/Unfair Dismissal
Unfair Dismissal 3 Step process
3
- Employee must prove theyre eligible and have been dismissed
- Employer rebuts claim via 1 of 5 fair reasons
- (if employer succeeds)- ET decides if they acted reasonably in the manner of dismissal
Dismissal/Unfair Dismissal
Employee Eligibility for Unfair Dismissal
4 (length service, method)
Employed for 2 years
Explicitly Dismissed
Constructively Dismissed- (repudiatory breach by employer treated as termination by employee)
Non-renewal of FT contract
Dismissal/Unfair Dismissal
5 Potentially Fair Reasons for Dismissal
6 (1 x statutory reference)
- Capability/Quals
- Conduct
- Role is Redundant
- Illegality (contravention statutory enactment)
- Some other substantial reason
s98 ERA 1996
Dismissal/Unfair Dismissal
Written Statement for Reason of Dismissal
2 (statutory ref and response period)
s92 ERA 1996
Must be provided in 14 days
(need 2 years employemnt as per Unfair Dismissal)
Dismissal/Unfair Dismissal
2 methods of Assessing Fairness of the Dismissal (did the employer act reasonably? )
2
- Substantive Fairness (within the band of reasonable responses that a reasonable employer would have done?)
- Procedural Fairness- were the procedurs adopted fair?
Dismissal/Unfair Dismissal
(Usual) Remedy for Unfair Dismissal and Award Types
2
- Basic Award- statutory formula (capped)
- Compensatory Award- compensates employtees for loss they suffered (net and future wages, other benefits)
> by 25% if E fails to follow ACAS and < by 25% if Ee fails follow ACAS
Dismissal/Unfair Dismissal
Automatically Unfair Dismissals
5
- Connected with Discrimination (not retirement re: age)
- Pregnancy
- Whistleblowing/Illegal practice report
- Union Activities/lawful industrial action
- Asserting Statutory Rights
Day 1 Rights and no upper limit
Dismissal/Unfair Dismissal
Time Limit to bring any Dismissal claim to Employment Tribunal
1
Within 3 months minus 1 day of dismissal
Dismissal/Unfair Dismissal/Redundancy
3 Valid Reasons and the Statutory Reference
4
- Business Closure
- Workplace Closure
- Reduced Requirement
As per s139 ERA 1996
Dismissal/Unfair Dismissal/TUPE
Key Requirement of Transfer
1
Must be an economic entity that retains its identity
can be whole or part of an undertaking or business
