| TERMINATION OF EMPLOYMENT | Senior employees (lawyers, doctors etc.), ‘reasonable’ notice period likely to be 3-6 months Very senior employees (MD etc.), ‘reasonable’ notice period could be as much as 12 months |
| ACTIVITY 1 – STATUTORY NOTICE PROVISIONS | | 1 month | 1 week | | 2 years | 2 weeks | | 3 years | 3 weeks (etc…) | | 12 years | 12 weeks (maximum) | | 40 years | 12 weeks | |
| 1 – 4 weeks less than statutory minimum 2 – contract longer than the statutory provision; longer prevails 3 – same as 2; longer period prevails |
| TERIMATION BY AGREEMENT AND PILONS | |
| SUMMARY DISMISSAL AND EMPLOYEE’s REPUDIATORY BREACH | Stealing for example; the employer will want to dismiss the employee straight away Dismissal without notice, or without the ending of the fixed term, is known as summary dismissal… if the employee is guilty of repudiatory conduct, the employee will not be able to complain of WD in relation to that summary dismissal… the employee has committed a repudiatory breach of contract first and the summary dismissal is simply a reaction to that breach These are situations where the employee has undermined the contract that exists between himself and the employer Before the employer decides to summarily dismiss an employee, the employer must be certain that the conduct they are complaining of is a repudiatory breach of contract(carry out a full investigation and follow a disciplinary procedure to enable the employee to put forward his side of the story); the summary dismissal of an employee who’s misconduct is not sufficiently serious enough to be a repudiatory breach may give rise to a claim of WD… indeed a lot of cases arise where the employee argues that their conduct did not amount to a repudiatory breach |
| CONSTRUCTIVE DISMISSAL AND EMPLOYER’S REPUDIATORY CONDUCT | Usually if the employee resigns the contract terminates and the employee has no claim of WD However if the employee resigns due to the employer’s repudiatory breach, it may do A constructive dismissal occurs where employer is guilty of a repudiatory breach of contract that allows the employee to resign in response If the employee does resign, the employee will have a claim of WD If the employer only commits minor breaches of the contract, the employee won’t be justified in resigning, unless it comes as the ‘last straw’ (last in a long line of minor breaches); in this case the employee’s resignation may be justified when the employer’s actions are looked at as a whole |
| ACTIVITY 2 – CONSTRUCTIVE DISMISSAL | |
| MAKING A CLAIM | Dismissed employee will have to decide whether to take the case to a tribunal or a civil court -
Disadvantages of employment tribunal: Employment tribunal can only award damages; no injunction can be awarded and can’t bring the claim before the employment is ended Employee must bring case within 3 months of dismissal/resignation, otherwise the tribunal has no jurisdiction Damages limited to 25,000 even where the employee’s loss is much higher -
Advantages of employment tribunal: Case is heard quickly, usually within 6 months of application to the tribunal Proceedings are quicker and less formal than court proceedings For average employees, the limit on damages is not a problem; higher paid employee may prefer to go to a civil court (high court or county court) -
Disadvantages of civil courts: Lot longer to come to trial than tribunal; the potential higher reward will take much longer to attain Going to court is more expensive The proceedings are formal and very few litigants represent themselves successfully; most will require legal representation The loser will have to pay a sum towards the successful party’s costs which could be a deterrent -
Advantages of county court: |
| ACTIVITY 3 – EMPLOYMENT TRIBUNAL OR CIVIL COURT | |
| DAMAGES FOR WRONGFUL DISMISSAL | Damages = loss suffered as a breach of contract; normal principles for contractual damages apply; put the employee in the position he would have been in had the contract been performed -
What is taken into account? Loss of salary for the notice period or remainder of fixed term; the employee is awarded the salary they would have earned during the notice period or during the remainder of the fixed term (exception where there is a break clause allowing the employer to terminate the contract early at a specified date… e.g. break clause is 3 years in and the employer terminates 2.5 years in… 6 months’ salary would be awarded); the loss of salary is awarded net of tax and national insurance as he is only entitled to damages that represent the actual loss suffered Outstanding holiday to pay to which he was entitled at the date of termination Benefits, commission, tips, company car, private medical insurance, interest free loans (all awarded as damages); only to which they were contractually entitled, not discretionary payments such as a discretionary Christmas bonus Once they have calculated the damages, they then consider whether any deductions should be made from the award |
| ACTIVITY 4 – DEDUCTIONS FROM THE AWARD | Failure to mitigate loss: Income from new job: Payments...
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