So to get back to the main topic. I said we would
look in more detail at two of the heads – they are, on the slide, the third and the fourth, redundancy and retirement. Redundancy first. This is a complex area in employment law. One definition of redundancy given by
thefreedictionary.com on the Web is: ‘the state or fact of being unemployed because work is no longer offered or considered necessary.’ Typically, this means that someone’s job disappears and this can happen for a number of different reasons; not just advances in technology, which make some types of job obsolete.
Now the fourth head under which an employee can be fairly dismissed is retirement. Of course this is different from redundancy, because it depends on the employee’s age. To be more precise, retirement occurs when someone reaches what is known as normal retirement age. This is usually specified in the contract of employment. If it isn’t specified, courts will now construe this as 65 for both men and women. In the past, of course, women could retire at 60. The change came into force on 1st October 2006 under the Employment Equality (Age) Regulations. So to summarize, briefly, this particular part of employment law: ‘redundancy’ is a precise legal term. If an employer feels that an employee isn’t pulling his weight, the employer can’t just say there is no longer a job for the employee to do. The same is true of retirement. An employer can dismiss an employee at his contractual age of retirement. They can’t sack him, under this head, as a cover for unfair dismissal, just because they think he’s getting on a bit and isn’t performing as well as they would like.
OK, so now we’ve seen on what grounds an employer can dismiss an employee fairly. And under these heads, what rights an employee might have to claim unfair dismissal. To quote Benny, Sargeant and Jefferson, ‘The basis of UD is statutory. Therefore it is governed by statute. In a case where the dismissal is not automatically unfair the employee must prove that he or she is qualified and has been dismissed. The burden of proof then switches to the employers to show that they had one of five possible potentially fair reasons: capability, conduct, redundancy, statutory illegality and some other substantial reason.’
Now I think that’s all I’m going to say for the moment on the basic parts of unfair dismissal. Are there any questions so far? … No, good. Now when I see you in tutorials, we’ll look in more detail at the case law in wrongful dismissal. In the meantime, I’m going to set you a research task. Right, now listen carefully ... your task is to find out about the different cases that have created
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precedents to develop the common law approach to wrongful, as opposed to unfair, dismissal.
Unit 9, Lesson 3, Exercise D 2.6
Extract 1 Finally, there is what the ERA terms ‘another substantial reason’. In other words, there is an overwhelming reason to dismiss an employee. For example, if an employee is sent to prison, or less drastically, where an employee just cannot work with a colleague because of a personality clash. Benny, Sargeant and Jefferson point out in Employment Law, in the Blackstone’s Law Questions and Answers series, one of your core texts – this edition was published in 2007 – that this particular clause is open to wide interpretation.
Extract 2
By the way, I see that some of you are using the Cornell note-taking system. That’s very good. Do you all know about this? No? Right, well, if you want to know more about it, I suggest you look at How to Study in College by Walter Pauk, the 9th edition, published in 2007. It’s very good, and it should be in the university library.
Extract 3
So to get back to the main topic. I said we would look in more detail at two of the heads – they are, on the slide, the third and the fourth, redundancy and retirement. Redundancy first. This is a complex area in employment law. One definition of redundancy given by
thefreedictionary.com on the Web is: ‘the state or fact of being unemployed because work is no longer offered or considered necessary.’ Typically, this means that someone’s job disappears and this can happen for a number of different reasons; not just advances in technology, which make some types of job obsolete.
Extract 4
OK, so now we’ve seen on what grounds an employer can dismiss an employee fairly. And under these heads, what rights an employee might have to claim unfair dismissal. To quote Benny, Sargeant and Jefferson, ‘The basis of UD is statutory. Therefore it is governed by statute. In a case where the dismissal is not automatically unfair, the employee must prove that he or she is qualified and has been dismissed. The burden of proof then switches to the employers to show that they had one of five possible potentially fair
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