8 Termination of Employment
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Transcript of 8 Termination of Employment
8 Termination of Employment
(Part 1)
Is it a dismissal?
• Resignation of the employee
• Mutual agreement
• Frustration of contract
Making a claim of unfair dismissal
Eligibility:
• Employees of the dismissing employer
• One year’s continuous service
• Illegal contract
• Not police officers
Potentially fair reasons for dismissal
• Lack of capability or qualifications
• Bad conduct
• Redundancy
• Statutory ban
• Some other substantial reason
• Retirement
Capability issues
Employer must
• Help employee try to improve
• Support performance with supervision and training
• Take due account of illness
Conduct
• Gross misconduct
• Suspension
• Summary dismissal
• Misconduct
• Warnings
Reasonableness
• The fact underlying the belief must be established
• The belief must be held on reasonable grounds, after an appropriate investigation
• The investigation must be reasonable, in the circumstances
Statutory ban
Examples:
Banned from driving when job involves driving
• Placed on sex offenders’ register when job is working with children
Some other substantial reason
Examples:
• Pressure from external source to dismiss
• Reorganisation of the business
• Mistaken belief
Retirement
• Retirement age
• Statutory procedure
Statutory dismissals and disciplinary procedure (DDP)
• Step 1 – letter setting out allegations
• Step 2 – meeting to discuss allegations
• Step 3 – possible appeal against decision
DDP
Modified version
• Step 1 – letter explaining reasons for dismissal
• Step 2 – possible appeal
Statutory grievance procedure
• Step 1 – write letter setting out grievance
• Step 2 – meeting to discuss grievance
• Step 3 – possible appeal against decision
Statutory grievance procedure
Modified version
• Step 1 – employee writes a letter setting out the grievance
• Step 2 – employer writes back with a response
Polkey defence
• DDP must be followed
• Would following additional company procedure have made any difference?
Gibbons Report
• Repeals the statutory procedures• Provides clear and simple guidelines for
employers on handling grievances and dismissals in the workplace
• Provides incentives for complying with the guidelines through the employment tribunals continuing to consider reasonableness of actions when making awards and cost orders
Disciplinary warnings
ACAS guidelines:
• Informal warning
• Formal warning (that remains on the employee’s record for six months)
• Final written warning (that remains on the employee’s record for 12 months)
• Dismissal
Right to be accompanied
• Trade union representative
• Colleague
Constructive dismissal
• There was a fundamental breach of the contract on the part of the employer
• The breach of the contract caused him or her to resign
• There was no significant delay in resigning
Automatically unfair dismissal
• Most require no qualifying period
• Not following DDP is automatically unfair dismissal – but the one-year qualifying period is still required
Remedies
• Compensation
• Re-instatement
• Re-engagement
Compensation
• Basic award
• Compensatory award
• Increases and deductions