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Unfair dismissal summary notes
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Unfair dismissal summary notes
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Ending the employment relationship –unfair dismissal
An employer can dismiss an employee with or without notice.
o With notice – failure to serve the correct notice period will mean that
the offending party is in breach of contract.
o Without notice – summary dismissal (“gross misconduct”)
Examples of gross misconduct – assault, refusal to obey
instructions, dishonesty, gross negligence, drunkenness at work.
Dismissal can result in a claim for wrongful or unfair dismissal.
The language of the dismissal is important – merely abusive language used
by the employer does not necessarily amount to a dismissal – Taner v Kean
(1978) The employee was told not to use a company van for private use.
Aruged with the employer after using the van for private purposes, the
employer said “you’re finished with me”. The EAT held that the language of
the employer must be clear and unambiguous.
o What was the intention of the employer? Did the employee genuinely
believe that they were being dismissed? How would a reasonable
employee understand the meaning of the words? Was the language
used in the heat of the moment? Was it retracted?
Abusive conduct by the employer could give rise to a claim for constructive
dismissal.
, Wrongful dismissal
An employer can dismiss an employee with notice (regulated by ERA 1996 or
by the terms of the contract if notice period is longer).
Summary dismissal: Alternatively the employer can instantly dismiss an
employee without notice (for reasons of gross misconduct).
Failure to provide sufficient notice or follow disciplinary procedures may result
in a claim for wrongful dismissal.
Gardening leave must be provided for in the contract, or can be wrongful
dismissal.
Wrongful dismissal is a common law claim as the employee is citing breach of
contractual terms. The claim may be heard in a court of tribunal.
Damages may be awarded.
Defences:
o There was no dismissal (resignation or frustration)
o The dismissal was lawful (following gross misconduct for example)
Unfair dismissal
Alternatively, an employee can pursue a claim for unfair dismissal
The issue is whether according to statute the dismissal was fair or not. It is
therefore a statutory claim – s94 ERA 1996
o An employee has the right not to be unfairly dismissed by his employer
However, even if the employer has a fair reason for dismissal, they must have
acted reasonably and procedurally correct.
o Procedures for dismissal must be fair or it can equal unfair dismissal.
Determing the ‘effective data of termination’ is important because
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