TRANSCRIPTS
until it became part of statutory law. It’s a relatively new concept, as it only came into force in the Industrial Relations Act of 1971. By contrast, wrongful dismissal, which we will come to later, is subject to common law. Cases involving unfair dismissal are heard in employment tribunals and not in the ordinary courts. There is one key point before we look at the detail: normally an employee needs to have at least a year’s continuous service before being able to claim unfair dismissal.
Now, in terms of the contract of employment, the employer must have a good reason for dismissing the employee and has to show that the reason is genuine and justifies the dismissal. There are a number of potentially fair reasons for an employer to dismiss an employee, such as conduct and capability. We’ll look in more detail at these reasons later. Incidentally, it could be argued that these reasons for dismissal might also occur in wrongful dismissal. However, remember that, in theory, the remedy for unfair dismissal is only available if an employee has more than one year’s continuous service. As we shall see, the courts take a different approach when employees have lost their jobs after being with a company for less than a year.
So, there are a variety of circumstances in which an employee can claim unfair dismissal. For example: your boss asks you to perform a task that you think is outside the range of skills which you were employed for. You do the task badly and, as a result, you’re fired. In these circumstances, if the tribunal accepts that you were not offered or provided with adequate training to perform the task, and the task was outside your job description, it might conclude that you were unfairly dismissed, provided you had completed one year’s continuous service. It could be argued that the management simply believed that the employee was incompetent and unable to carry out the task, regardless of whether or not training was offered. It is then up to the tribunal to decide, on the facts, if the dismissal was unfair.
As I said, unfair dismissal is a statutory matter so the levels of compensation awarded in the event of an unfair dismissal are fixed by statute: that is to say, the maximum awards are usually calculated by a formula, such as multiples of one week’s pay.
There is one other important point. Employers must act fairly in the procedure they follow during the dismissal. They must follow certain dismissal procedures before they can lawfully dismiss a person who has 12 months’ service or more. If they
don’t, the dismissal is automatically unfair. Even if you don’t have 12 months’ service, if they sack you because, for example, you’re pregnant, join a trade union or complain about a health and safety problem, that is unfair dismissal. This is all laid down in various statutory provisions.
Oh, one final point, very important, in relation to unfair dismissal is that, unlike wrongful dismissal, it can occur without any breach of contract. What I mean is, an unfair dismissal can occur even though the employer has not broken the terms of the contract.
Unit 9, Lesson 2, Exercise C 2.2
Part 2 OK. Let’s turn now to wrongful dismissal. In wrongful dismissal cases, the employer has breached the terms of the contract by, for example, failing to give the correct period of notice, or failing to provide adequate compensation instead of the period of notice. Wrongful dismissal may also occur if an employee resigns from the job because the employer has committed a serious breach of contract, and the employee has not waived the breach by, for example, staying in the same job for too long after the breach was committed. Waiving in this case – W-A-I-V-I-N-G – means ignoring the breach. If you think a breach of contract by your employer is a serious matter, you must react quickly, otherwise the courts may decide that you waived, or ignored, the breach. From the point of view of the contract, a serious breach would be something like a complete change of the job description or a substantial reduction in pay.
Leading on from the previous point, wrongful dismissal cases follow the common law rules of contract. An employer has defences against wrongful dismissal if an employee has committed gross misconduct by, for example, stealing company property. In such a case, the employer has the right to sack the employee without notice. Of course, it’s true to say that the same reason can also be given in cases of unfair dismissal because your employer has a genuine reason which justifies your dismissal.
As you can see, there are many similarities between unfair dismissal and wrongful dismissal, but crucially there are a number of differences. Let us recap. Unfair dismissal is an invention of statute. In order to claim unfair dismissal, an employee must normally have at least one year’s continuous service. Cases for unfair dismissal are
127
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112 |
Page 113 |
Page 114 |
Page 115 |
Page 116 |
Page 117 |
Page 118 |
Page 119 |
Page 120 |
Page 121 |
Page 122 |
Page 123 |
Page 124 |
Page 125 |
Page 126 |
Page 127 |
Page 128 |
Page 129 |
Page 130 |
Page 131 |
Page 132 |
Page 133 |
Page 134 |
Page 135 |
Page 136 |
Page 137 |
Page 138 |
Page 139
