Unfair dismissal

A feature of the 1978 Act is that the employee has the right not to be dismissed unfairly (s. 54) and to demand that the reasons for his dismissal be given in writing (s. 53). If he is dismissed, he is given the right to appeal to an Industrial Tribunal (s. 67). Reasons for dismissal recognised as being fair (s. 57) include ... 

Where an employee considers he has been dismissed unfairly he is given a right to make a complaint (ss. 67,68,69) to an industrial tribunal, who can, if the complaint is found to have substance, decide on a prescribed remedy (re-instatement, re-engagement or compensation) to suit the case, a remedy to which the employer is bound. If the tribunal decides the dismissal was fair and the employee is still not satisfied, he can appeal to the Employment Appeal Tribunal (s. 136) which is presided over by a High Court judge, appointed by the Lord Chancellor, sitting with two lay members. 

Hence, even if either model does not seem to be completely accurate at conceptualizing the research subject s situation, there might be something appealing in both characterizations as victim and as contractor. This is why 1 believe they should not be dismissed. What we can say is that, as a possible contractor, her autonomy and consent should be sought. And, as a possible victim, in addition to the adequacy of informed consent, she should be protected from unfair situations. We have to acknowledge both aspects of the situation. We cannot reduce the research subject to a rational contractor. 

The action for unfair competition and patent infringement was then dismissed for lack of jurisdiction. 

Employees can at any time terminate the employment relationship under a CNE without statement of grounds. If employment is terminated by the employer, a 14-day notice period becomes effective after an employment duration of 1 month, and is extended to 1 month after 6 months employment. This contract thus dispenses with the essential protection against (unfair) dismissal provision that demands the statement of a real and serious cause (cause reelle et serieuse).94... 

If you have been working for the same employer for one year or more, you can complain to an Employment Tribunal if you think you have been unfairly dismissed. If you haven t worked for the same employer for this length of time, then you should talk to your training officer or trade union. 

Industrial Tribunals were set up in 1964 to deal with matters arising under the Industrial Training Act of that year. Now they have statutory jurisdiction in a range of employment matters, such as unfair dismissal, redundancy payments, equal pay, and sex and race discrimination. In the context of HSW they hear appeals against prohibition and improvement notices, and applications by statutory safety representatives about payment for time off for training. 

Delegated legislation is suitable for detailed technical matters. By avoiding the formality required for an Act of Parliament the legislation can be adapted, and speedily (for example, the maximum unfair dismissal payment may be increased quickly by an Order). 

It is possible for the court to grant Specific Performance as a remedy whereby one party is ordered to complete his part of the contract. The remedy is discretionary and little used outside of land sales. It will not be granted where the contract is one of personal services, e.g. in a contract of employment. Although an industrial tribunal may order reinstatement of an employee following an unfair dismissal, such a remedy cannot be enforced against an unwilling employer and his refusal will merely be reflected in the compensation awarded to the former employee. 

Where an employee alleges unfair dismissal. Part V of the 1978 Act (as amended) sets out to define the scope of unfair dismissal and the remedies that are available together with the methods of calculating compensation. Part VI deals with redundancy payments. 

Termination of employment is considered in more detail below. However, for a dismissal to be held to be fair, certain procedures must be followed and these are dealt with below. The right of appeal against unfair dismissal does not exist for employees whose continuous employment with that employer amounts to less than 1 year, to those who are beyond the retiring age normal in that employment (s. 64) and certain other classes (s. 140 et seq.). 

When a complaint alleging unfair dismissal has been entered the industrial tribunal can send a copy of the complaint to a Conciliation Officer and that officer can, either at the request of both parties or in other cases as he considers fit, endeavour to arrange a settlement between the parties (s. 133) before the tribunal hearing. 

This modifies the previous Acts in respect of closed shop rights of unions and also deals with rights to maternity pay and in the event of unfair dismissals. One of the main considerations of a tribunal in reaching its decision has been whether, in all the circumstances, the action the employer took was reasonable. Under the earlier Acts, the burden of proof was upon the employer to satisfy the tribunal of such reasonableness. However, under the 1980 Act, that burden of proof is removed and all the tribunal requires is to be satisfied that, in ail the circumstances, the employer did act reasonably... 

The 1982 Act enlarges the 1978 Act concerning dismissal for nonmembership of a trade union which automatically becomes unfair unless the relevant employees had previously opted for a closed shop in a secret ballot. The compensation payable for such unfair dismissal is also dealt with. 

Initially, tribunals and indeed the Courts of Appeal had grave difficulty in deciding how this particular provision should be interpreted. On the one hand, some decisions indicated that it was purely and simply the conduct of the employer and if it was sufficiently grave for the employee to have a real complaint concerning it, then he was justified in terminating his own contract of employment and claiming thereafter that he had been unfairly dismissed. But the circumstances were not always so clearly defined nor the employer s conduct as grave as the complainant would indicate. 

In determining whether a dismissal was fair or unfair, s. 57(2) of the 1978 Act lays down the categories of circumstances that can justify fair dismissal, and in reaching its decision the tribunal will be bound by these categories. 

The decision in Marder v. ITT Distributors turned on this latter point where it was held that because the employer had not agreed with the employee, Mrs Marder, a time by which she would state when she could return to work, the dismissal was considered unfair. However it has been held in Taylorplan Catering (Scotland) Ltd v. Mclnally that if it had been shown that consultation with the employee would have made no difference to the dismissal, the dismissal would have been held to be fair. The requirement to consult the sick employee is laid down in East Lindsey District Council v. Daubney. ... 

In cases where an employee has refused to obey an employer s instructions and it transpired that this stemmed from an unreasonable attitude of the employer, or the employer has not done all he could to meet the reasonable request of the employee, then it has been held that subsequent dismissal was unfair. This arose in the case of Austin v. British Aircraft Corporation Ltd where Mrs Austin and her fellow employees were required to wear eye... 

The same principle applied in Keys v. Shoefayre Ltd in which the owner of a retail shop failed to take proper precautions to protect his employees who worked in a shop in an area with a high crime rate. Here it was held that the employer was in breach of a fundamental term of the contract of employment to take reasonable care to provide a safe system of work and to have reasonably safe premises and that the resignation of Mrs Keys amounted to unfair constructive dismissal. 

When the trading position of a company is depressed to the extent that they can no longer afford to continue employing all their existing employees, those who are dismissed on the grounds of lack of work become redundant. This is defined in s. 81(2) of the 1978 Act. The selection of which employees are to be declared redundant must be equitable taking into account all the circumstances, otherwise the redundancy can be regarded as unfair dismissal. 

Industrial Relations Legislation status of trade union officials (shop stewards) Contracts of Employment unfair/wrongful dismissal disciplinary arrangements. 

Planning an interview is important, especially if it involves hiring or termination, because of the equal opportunity and unfair dismissal laws, which apply in many jurisdictions. Even if there is to be an on-the-spot step into my office interview for some reason, it can pay to spend a few minutes thinking beforehand about how to conduct... 

Other courts - Employment Tribunals These were established in 1964 and primarily deal with employment and conditions of service issues, such as unfair dismissal. However, they also deal with appeals... 

Dolding, L. 1994. Unfair dismissal arrd indrrstrial actiorr, Industrial Law Journal, 23 (3). 

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