#3351 - Employment Crib Sheet - Business Law and Practice

Employment

1. If contract has been terminated then the employee may have a choice of statutory claims or a common law claim

2. Statutory Claims

   1. Unfair dismissal

      1. Is there a qualifying employee

         1. 2 years continuous employment for an employee with a new employer post 6 April 2012

         2. 1 year continuous employment for an employee before 6 April 2012

      2. Has the employee been dismissed?

         1. Constructive dismissal

            1. Employee terminates the contract in response to a pre-dated breach by the employer

               1. A repudiatory breach that goes to the heart of the contract where the essence of the employment has been altered

         2. Actual dismissal

      3. Burden of proof switches to the employer to prove that the principal reasons for dismissal were 98(4) ERA 1996

         1. Capability

            1. Do the qualifications of employee match the kind of work he was employed to do

            2. Employer should normally warn employee about standard or work, give him the change to improve & perhaps offer additional training & supervision

         2. Conduct

            1. Employer should carry out a thorough investigation & allow the employee to state his case

               1. Do not dismiss unless gross misconduct or persistent misconduct

            2. Employer follow ACAS code of practice

         3. Redundancy

            1. Employer warn & consult affected employees or their representatives & adopt a fair basis of selection for redundancy

               1. Usually involves employers drawing up a matrix of objective selection criteria & fairly marking each employee against each criterion

         4. Illegality

            1. Employee could not continue to work in position he held without contravening some statutory enactment

         5. Substantial reason for justifying dismissal

            1. If dismissal for long-term sickness, employer should consult with employee as to likely duration of illness & its nature

      4. Employer must also show that he acted reasonably in treating that reason as sufficient for dismissing employee having regard to equity and the substantial merits of the case

         1. Follow a fair process

      5. Claim must be brought before employment tribunal by employee within 3 months

      6. Compensation

         1. Basic Award

            1. Multiply employee’s final gross week’s pay (max. 430) by

               1. Length of service (max 20 years) AND

               2. Multiplier depending on employee’s age during years of service (working backwards from end of employment)

                  1. Years worked when 41 or older = 1.5

                  2. Years worked between 22 and 41 = 1

                  3. Years worked when below 22 = 0.5

         2. Compensatory Award

            1. Such amount as the tribunal considers to be just & equitable having regard to the loss sustained by the employee in consequence of the dismissal

               1. Maximum award is 72,300

               2. Take into account

                  1. Immediate loss of net wages from date of dismissal to date of hearing

                  2. Future loss of net wages

                  3. Loss of fringe benefits

                  4. Loss of statutory protection

         3. Add two awards together

            1. 25% reduction in employee did not comply with ACAS code

            2. 25% increase in employer did not comply with ACAS code

            3. Reduce if contributory fault of employee

         4. Employee can ask for reinstatement or re-engagement

            1. Unlikely to be awarded

   2. Redundancy

      1. Employee must have 2 years’ continuous employee

      2. Employee prove that he has been dismissed

         1. A presumption will arise that employee was dismissed for redundancy

      3. Does reasons for dismissal fit into the statutory definition of redundancy 139 ERA 1996

         1. Complete closedown

            1. Employer has ceased or intends to cease to carry on business for purposes of which employee was employed

         2. Partial closedown

            1. Employer ceased or intends to cease to carry on that business in place where employee was employed

         3. Over-manning or a change in the type of work undertaken

      4. Claim must be brought before employment tribunal within 6 months

   3. Discrimination

      1. Equality Act 2010

         1. 39 unlawful to discriminate on recruitment, as to the employment terms offered, opportunities for promotion, transfers & training on dismissal & on subjecting the employee to any other detriment

         2. 16 outlaws discrimination where a person is absent from work because of gender reassignment and 18 where absence is a result of pregnancy or related illness

         3. 13 direct discrimination

         4. 19 indirect discrimination

         5. 26 harassment

         6. 227 victimisation

         7. 15 discrimination arising from disability

         8. 20 & 21 failure to make reasonably adjustments on disability

         9. 18 pregnancy and maternity discrimination

3. Common Law Claim

   1. Wrongful Dismissal

      1. If statutory minimum notice period not complied with or if contract specifies longer then it prevails

         1. APPLY TO FACTS

            1. Is there a PILON clause in the contract?

      2. Notice periods

         1. Fixed term contract without a break clause, termination prior to expiry date will be a breach of contract

         2. In the absence of any expressly agreed period of notice, there is an implied term of reasonable notice

            1. Ultimately determinable by the court

            2. Statutory minimum 86 ERA 1996

               1. 1 weeks’ notice after 1 months’ continuous employment

               2. 2 weeks’ notice after 2 years’ continuous employment

               3. Thereafter 1 weeks’ notice for each year’s employment up to a maximum of 12 weeks’ continuous notice

      3. If employee has committed a repudiatory breach a claim cannot be brought

      4. Compensation

         1. Breach of contract rules apply – aim is to put employee in position he would have been in had the contract not been broken

            1. Starting point is salary the director...