Unfair Dismissal

4562 Words19 Pages
t is important to distinguish unfair dismissal from the common law remedy for wrongful dismissal. The latter is a civil law remedy essentially based upon breach of the contract of employment. From the point of view of the employee, there are significant deficiencies in this civil law relief as a remedy. Because an employer is generally entitled under the terms of the contract to dismiss upon giving the appropriate period of notice as stipulated by the contract, damages will often be limited to the loss of earnings during that period. The civil law does not provide for a remedy by way of reinstatement. There is no remedy based upon breach of contract for failure to follow appropriate grievance and disciplinary procedures prior to dismissal.…show more content…
However, the employee lost on further appeal when Lord Denning held that for there to be a constructive dismissal, the employer's actions had to amount to a significant breach of the contract of employment. This therefore applied a contractual analysis more akin to the civil law wrongful dismissal approach. However, as will be seen below, cases of constructive dismissal are now regulated by the statutory disciplinary and grievance procedures introduced by the Employment Act 2002 (EA 2002). It will be argued that these new requirements have the effect of tipping the scales too far in favour of the employer in many cases. Fairness Section 98(4) of ERA 1996 defines this concept: the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) - (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case. It should be noted, however, that s.34 EA 2002 inserted a new s.98A into ERA 1996 which provides that breach by the employer of a statutory procedure on dismissal, which sets down the minimum procedural requirements, means that the dismissal is in any event automatically unfair. (The
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