Practice Notes on Termination of Employment Law

John Bowers, John Bowers

• Publisher: Routledge-Cavendish
• Year: 2012
• ISBN:
  9781135341541
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

This book provides the busy practitioner with a fundamental, step-by-step guide to key aspects of the law regarding unfair dismissal. Concentrating on the client interview to establish the validity of the claim, it guides the practitioner smoothly through the necessary paperwork and highlights the time limits within which a claim can be brought before an industrial tribunal, outlining the conduct of the hearing itself.

The book addresses the important tactical questions which arise at each step of the case and includes detailed lists, ready-to-use forms, precedents and a table of time limits. It also offers potential solutions through conciliation and outlines the appeals process.

1 Basic Information

1.1 Statutes

The Employment Rights Act 1996 (ERA) is the basic consolidating statute of individual employment law. It replaced the Employment Protection (Consolidation) Act 1978, which had itself been amended in various respects by the Employment Acts 1980 and 1982, the Sex Discrimination Act 1986, the Wages Act 1986, the Employment Acts (EA) 1988, 1989, 1990 and 1992 and the Trade Union Reform and Employment Rights Act 1993. The Transfer of Undertakings (Protection of Employment) Regulations 1981 SI 1981/1794, whilst not actually amending the Act, have a major impact on its effects. Some of these are affected by amendments made by the Employment Relations Act 1999.The main sections of ERA relevant to termination of employment are as follows:

1.1.1 Right to return to work after maternity leave

• Section 66 provides the right for a woman to return to work after 29 weeks maternity leave, unless it is not practicable to do so because of redundancy;

• s 69 provides that the employee must give at least 21 days’ notice of her return. The employer or employee may postpone that return in certain limited circumstances;

• s 71 provides for not less than 18 weeks ordinary maternity leave with the right to return to work on no less favourable terms and conditions;

• s 73 provides for additional maternity leave if the employee has at the beginning of the 11th week before the expected week of childbirth been continuously employed for not less than one year. She has the right to return to her job within 29 weeks of childbirth;

• r 10 of the 1999 Maternity and Parental Leave Regulations states that if a woman’s job is redundant when she is on maternity leave, then the employer must offer her a suitable alternative vacancy if one exists.

1.1.2 Right to minimum period of notice

• Section 86(1) provides that an employee is entitled to one week’s notice for each year of continuous service up to a maximum of 12 weeks;

• s 86(2) provides that, where an employee has been employed for more than one month, he must give his employer at least a week’s notice.

1.1.3 Right to written statement of reasons for dismissal

• Section 92 provides that an employee with one year’s service is entitled to be provided within 14 days of a request with a written statement giving particulars of reasons for dismissal. Irrespective of length of service, if a woman is dismissed when pregnant or on maternity leave, she is entitled to be provided with these reasons (new s 53(1)(2A)).

1.1.4 Unfair dismissal (see 3.2–3.4 below):

• Section 95(1) provides that an employee is dismissed if he is told so with or without notice, his fixed term contract expires without being renewed under the same contract, or he is constructively dismissed;

• s 97(1)–(4) defines the ‘effective date of termination’;

• ss 96 and 98 state that a failure to permit a woman to return to work after confinement is treated as a dismissal unless the employer and any associated employers did not employ more than five employees and it is not reasonably practicable to permit her to return, or she turns down a reasonable offer of alternative employment, or if it is not reasonably practicable to permit her to return to her job;

• s 98(1) states that the employer has to show the reason, or principal reason, for the dismissal. The reason has to fall within s 57(2) or be some other substantial reason justifying the dismissal of the employee; for

• s 98(2) states that a reason may only be a fair reason for dismissal if it relates to:

• the capability or qualifications of the employee;

• the conduct of the employee;

• redundancy; or

• the contravention by the employer or employee of a duty or restriction imposed by or under any enactment;

• s 98(4)–(6) states that, having found the reason for dismissal, the employment tribunal must deter mine whether, in the circumstances including the size and administrative resources of the employer’s undertaking, the employer acted reasonably in treating it as a sufficient reason for dismissal. This is to be determined in accordance with equity and the substantial merits of the case;

• s 60 provides that a dismissal on the grounds of pregnancy will be unfair unless the employee is incapable of adequately doing the work or to employ her would contravene a statutory duty or restriction;

• s 60A states that dismissal for asserting certain statutory rights shall be unfair;

• s 61 provides that dismissal of an employee taken on to replace a woman on maternity leave is treated as some other substantial reason for dismissal, but the dismissal may still be unfair in all the circumstances;

• s 63 provides that in deciding questions of unfair dismissal, the employment tribunal should disregard any pressure brought to bear on the employer by strikes or other industrial action or threat of such action;

• ss 57A and 99 provide that dismissal on the grounds of pregnancy, childbirth, maternity leave, parental leave or time off to look after dependents will be unfair.

There are special provisions for automatically unfair dismissal with respect to:

(a) health and safety representatives properly carrying out their responsibilities (s 100);

(b) protected shop workers who refuse to work on Sunday (s 101);

(c) workers who refuse to comply with a requirement imposed by the employer in breach of the Working Time Regulations 1998 (s 101A);

(d) occupational pension trustees who carry out their statutory functions (s 102);

(e) employee representatives who carry out their responsibilities in connection with consultation over redundancies or transfers of undertakings (s 103);

(f) employees who make protected disclosures pursuant to the Public Interest Disclosure Act 1998 (s 103A);

(g) employees who have asserted a statutory right (s 104);

(h) employees who have exercised their rights under the National Minimum Wage Act 1998 (s 104A); and

(i) employees who have exercised their rights under the Tax Credits Act 1999 (s 104B).

1.1.5 Remedies for unfair dismissal (see 3.4 below)

• Section 108 provides that an employee cannot bring a claim for unfair dismissal unless he has been employed for more than one year before his dismissal; if he was over the normal retiring age (provided that the normal retiring age is the same for men and women, or if there is no normal retiring age, then the age of 65);

• s 110 states that the Secretary of State may designate dismissal procedure agreements so that employees covered by those procedures must use them and may not claim under the statute. So far, only the scheme between the Electrical Contractors Association and the Amalgamated Engineering and Electricians Union (AEEU) has been so designated;

• s 111 provides that a complaint to an employment tribunal of unfair dismissal must be made within three months from the effective date of termination, or within such further period as the tribunal considers reasonable if it was not reasonably practicable to present within this period;

• ss 115–17 provide that the employment tribunal may make an order for reinstatement or re-engagement. If the complainant is reinstated or re-engaged but the order is not fully complied with, then the tribunal makes an additional award;

• s 118 states that compensation for unfair dismissal may consist of a basic award and compensatory award. An extra compensation award may be made where an order for reinstatement or re-engagement is not complied with;

• s 119 provides for calculation of basic award in a similar manner to a statutory redundancy payment;

• s 123 provides for calculation of compensatory award, including the duty to mitigate; ignoring pressure by a trade union; contributory fault and set-off of basic award against redundancy payment;

• s 124 sets the limit on the compensatory award, at present £51,700;

• s 75A provides for the calculation of special awards where the reason, or the principal reason, for the dismissal is an inadmissible reason. In calculating this, the tribunal is to take account of compensation already awarded or to be awarded, for sex and/or race and/or disability discrimination or unfair dismissal;

• s 126 allows set-off of compensation for discrimination and unfair dismissal;

• s 128 provides for interim relief in the case of trade union dismissals and under the other provisions:

s 100(1)(a) and (b) where in a health and safety case a designated employee or workers’ representative is dismissed;

s 102(1) where a trustee of an occupational pension scheme dismissed;

s 103 where an employee representative is dismissed;

s 103A where an employee makes a protected disclosure under Public Interest Disclosure Act 1998 (PIDA);

para 161(2), Sched A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A) where an employee is dismissed because he acted with a view to obtaining, preventing, supporting or not supporting union recognition or derecognition under the Central Arbitration Committee’s (CAC) statutory recognition procedure.

1.1.6 Redundancy payments

• Section 139 gives the general definition of redundancy, that is the cessation or expected cessation of the business or work in the place where the employee was engaged or the diminution of the requirements for employees to carry out work of a particular kind;

• s 146 sets out the exclusions from redundancy payment: that is, a person over 65; certain terminations by employer on grounds of conduct; the making of a suitable alternative offer of employment which is unreasonably refused;

• s 136 gives a definition of dismissal for redundancy purposes;

• s 141 provides that, if the employee is offered an alternative position, he has in most cases a trial period of four weeks before deciding whether to accept it;

• s 142 states that, if an employee under notice wishes to leave early and the employer objects, the employment tribunal must decide whether it is just and equitable for him to receive the whole or part of the redundancy payment;

• ss 147–50 state that in certain circumstances, an employee placed on lay-off or short time working is entitled to claim a redundancy payment;

• s 153 gives the definition of relevant date for the purposes of a redundancy payment; it is generally the same definition as the effective date of termination.

• s 143 states that, if the employee takes part in a strike or commits misconduct during his period of notice, he is still entitled to a redundancy payment;

• s 139 provides that any act, including death, affecting the employer which terminates the contract of employment is trea...