Study Unit 14

Employment Law 2:
Termination of the Contract,
Discrimination and Tribunals
 A. NOTICE
If a contract of employment is for a specified period, the employment
ceases at the end of that period without notice. If the contract is not
for a definite period then if either party wishes to end it, they
must give the period of notice specified in the contract. If no period of
notice is expressly stated, the period of notice required is that which is
customary in the trade or reasonable in the circumstances.
A court will decide the latter point in view of such factors as the
nature of the work and the intervals at which wages are paid.
Cont…..
If a contract is terminated without notice,
the injured party may sue the other party
to the contract for
whatever damages he has suffered. In
practice, this is most likely to occur when
an employer
dismisses an employee without giving the
required notice. It is most unusual (but not
completely
unknown) for an employer to sue an
employee under these circumstances.
 Wrongful and Unfair
Dismissal
An employee who is summarily dismissed without proper cause can bring
an action for wrongful
dismissal in the court (not before an Industrial Tribunal, now known
as an Employment Tribunal).
Do not confuse “wrongful dismissal” with “unfair dismissal”. Wrongful
dismissal need not be
“unfair”, as when an employee’s misconduct justifies dismissal but not
dismissal without notice.
If an employee’s action for wrongful dismissal is successful, he or she will
be awarded damages but
cannot obtain an order of “specific performance” i.e. an order compelling
the employer to reinstate him or her.
 Minimum Periods of
Notice
The period of notice specified in the contract cannot be less than the
statutory minimum period of notice laid down in the Employment
Rights Act 1996.
Under this Act, the notice required to be given by an employer to
terminate the contract of employment of a person who has been
continuously employed for one month or more is:
 Not less than one week’s notice if his period of continuous
employment is less than two years.
 Not less than one week’s notice for each year of continuous
employment if his period of continuous employment is two years or
more but less than 12 years.
Not less than 12 weeks’ notice if his period of continuous employment
is 12 years or more.
B. WRITTEN STATEMENT OF
REASONS FOR DISMISSAL
Under the Employment Rights Act 1996 an employee is entitled to be provided
by his employer with a written statement giving particulars of the reasons for the
employee’s dismissal:
If the employee is given by the employer notice of termination of his contract of
employment.
 If the employee’s contract of employment is terminated by the employer without
notice.
 If the employee is employed under a contract for a fixed term and that term
expires without being renewed under the same contract.
In the following cases an employee is entitled to a written statement without
having to request it and irrespective of whether she has been continuously
employed for any period :
If dismissal occurs at any time while she is pregnant.
 After childbirth in circumstances in which her maternity leave period ends by
reason of the dismissal.
 C. CONSTRUCTIVE
DISMISSAL
Constructive dismissal occurs when an employee leaves an
employment, with or without notice, “in
circumstances such that he is entitled to terminate it without notice
by reason of the employer’s
conduct”. In other words, although the employee has taken the
initiative in leaving the employment,
he is regarded as having been dismissed and can, for example,
claim for unfair dismissal. However,
for a constructive dismissal to occur, the employer’s conduct must
involve a significant breach of the
terms of the contract; unreasonable or unfair behaviour is not
enough.
 Examples of conduct which have been
held to amount to constructive dismissal
are:
Unilateral reduction in basic rate of pay
 Unilateral change in job duties
 Handing an employee over to the police on
suspicion of theft without any
discussion
 Breach of implied terms of mutual trust
and confidence.
D. REDUNDANCY
Definition of Redundancy
Under the Employment Rights Act 1996, redundancy is deemed
to arise where the employer dismisses an employee because:
The employer has ceased or intends to cease to carry on the
business for the purposes of which the employee was employed;
or
The employer has ceased or intends to cease to carry on that
business in the place where the employee was employed; or
 The needs of the business for employees to carry out work of a
particular kind in the place where the employee was employed
have ceased or diminished, or are expected to do so.
E. UNFAIR
DISMISSAL
Prior to 1971, apart from compensation for
redundancy which was introduced in 1965, a
dismissed employee had no claim against the
employer, provided that the latter had given the
correct length of notice as required by the contract of
employment. The employer did not have to give a
reason for dismissal and, in practice, the employee
had only the threat of industrial action by fellow
workers to support any request for redress.
 F. EMPLOYMENT
TRIBUNALS
Constitution of Employment Tribunals
The Secretary of State may by regulation make provision for the
establishment of employment tribunals, and proceedings before such
tribunals are, in general, heard by:
 `the person who, in accordance with the appropriate regulation, is
the chairman; and
two other members, or (with the parties’ consent) one other
member, selected as the other
members (or other member) in accordance with regulations relevant
thereto.
 G. RACE RELATIONS
ACT 1976
Employment Provisions of the Act
The Race Relations Act 1976 tackles problems of
racial discrimination at work in much the same
ways as the Sex Discrimination Acts deal with
problems o f sexual discrimination at work falls.
 H. SEX
DISCRIMINATION ACTS
1975 & 1986
Employment Provisions of the Sex Discrimination
Act 1975
Broad Definition of “Employment”
The 1975 Act covers employment under a contract
of service (or apprenticeship). It also covers
employment under a contract personally to carry out
any work or labor. Thus the Act prohibits is
crimination by the employer, not only against
employees, but also against independent contractors
engaged personally to carry out specific work.
 Direct and Indirect
Discrimination
(a) Direct Discrimination
Direct discrimination (Section 1(1) (a) of the Sex
Discrimination Act 1975) is defined as
existing where the employer, on grounds of a
woman’s sex, treats her less favorably than a man. If
there is some good, rational reason for “less favorable
treatment” and the less favorable treatment is not on
account of sex, discrimination is not established
CONTI….
(b) Indirect Discrimination
A person complaining of sex discrimination has to be
able to prove his or her case. To do this, the
complainant must show that the discriminating
actions were substantial and continuous, and not
trivial or only loosely connected to the work and
conditions of work. The need to prove a causal link
between discrimination and the actual position or
status of the complainant is essential
I. DISABILITY
DISCRIMINATION ACT 1995
Scope of the Act
It is not intended here to give a detailed coverage of
the Act but simply to outline the structure and
main duties that it contains.
The Act came into effect in December 1996 and the
scope of the Act depends very much upon
regulations, guidance notes and codes of practice
published by the Department for Education and
Employment. There is little case law in this area yet.
 Meaning of
Disability
Physical or mental impairment which has a
substantial and long-term
adverse effect on a person’s ability to carry out
normal day-to-day activities.”
Schedule 1 clarifies the definition:
Impairment: physical and mental impairment
includes sensory impairment and includes
mental illness only if it is “clinically well recognized
as a mental illness”.
CONTI….
Long term usually shall mean 12 months or likely
to last at least 12 months. Recurring
conditions such as multiple sclerosis and epilepsy are
treated as having an adverse effect if they
are likely to recur, even though they do not affect the
day-to-day activities on a permanent basis.
CONTI….
Day-to-day activities include: mobility, manual
dexterity, physical co-ordination, ability to
lift and carry or otherwise move everyday objects,
speech, hearing, or eyesight, memory or
ability to learn or understand
Substantial adverse effect is intended to include
anything which is not minor, but the Act is
silent on this point and the situation will be covered in
guidance notes
 J. HEALTH AND SAFETY
AT WORK ACT 1974
Terms of Reference
The terms of reference of the Act were as follows:
“Secure health, safety, and welfare of persons at work.
Thus the act:
Brought health and safety under the same legislation for the first
time
 Covers all people at work except privately employed domestic
workers, so it covers all
employers, self-employed and employees
Covers employees who were previously unprotected by law –
about 5 million in the medical, transport and education industries.
 Cont…
“Protect persons other than persons at work against risks to
health and safety arising out of, or in connection with, activities
of persons at work.”
The health and safety of the general public relating to that of
work people was covered for the first time.
Control storage and utilization of “highly inflammable or
otherwise dangerous substances and generally prevent the
unlawful acquisition, possession, and use of such substances”.
Control is required even if the above substances are not being
used in connection with work.
Control “emissions into the atmosphere of noxious or offensive
substances”.
 Basic Duties of
People at Work
A. Employers
Employers have an overall duty at work to improve the
health, safety and welfare of employees. More specific
duties include the following:
 Maintenance of “safe systems of work, plant, premises
and working environment
Safety systems for “utilization, handling, storage and
transport of articles and substances”.
 Provision of “information, training, supervision and
instruction”, ensuring health and safety.
CONTI….
(b) Self-employed People
These persons have a duty not to expose themselves
or the public to health and safety hazards
(c) Manufacturers, Suppliers, Importers
Duties are in relation to “articles” and “substances”
to be used at work. Ensure that “design and
construction” of “articles” do not risk health and
safety of users.
CONTI…..
(d) Employees
Employees have a duty to:
 Take care of their own health and safety, and that of
others if one’s actions are likely to affect them
 To “co-operate” with an employer concerning their
duties
 Not to “interfere” or impede health and safety
provisions introduced by statute or by an employer.
 Safety Committees
and Representatives
The Safety Representatives and Safety
Committee Regulations 1977, for
example, allow trade union-appointed
safety representatives legal rights.
Apart from representing employees in consultations
with the employer, their functions are to:
Examine potential hazards, dangerous occurrences,
and causes of accidents at the workplace.
Investigate complaints by any employee relating to
the employee’s health, safety or welfare.