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Unfair Dismissal Notes

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Unfair dismissal

Discipline and termination of employment Introduction Law governing terminaton of employment occupies a central place in modern labour law: substantal proporton of litgated disputes arise out of terminatons of the employment relatonship. The legislaton on unfair dismissal represents a major incursion into the common law, limitng the employer's otherwise open-ended power to bring the contract of employment to an end without the need for substantve justfcaton, and imposing general standards of procedural fairness upon the process of dismissal. Redundancy payment legislaton, the other major area of statutory interventon, grants the employee the right to compensaton, based loosely on the principle of seniority, for the loss of a job on economic grounds. The law relatng to unfair dismissal and redundancy is about much more than the process of terminaton and its results; it afects the entre structure of the employment relatonship. Just as the power of dismissal is the "fercest sancton which backs up managerial authority to direct the workforce", so dismissal law has become the "tail [wagging] the whole dog of the employment relaton (Collins). The forms which govern the circumstances in which dismissal is legitmate indirectly set the limits to the employer's power to operate lesser disciplinary sanctons, such as suspension or demoton; accordingly also concerned with the law relatng to disciplinary procedures and the extent of the employer's power to impose sanctons short of dismissal. Statutory interventon has also qualifed the employer's common law rights to insist on unilateral changes to terms and conditons of employment. As long as the employer could terminate the contract of employment at will or on short notce, it efectvely had the right to dismiss and reemploy on those terms which it deemed acceptable. Now that this power of the employer is limited by the principles of unfair dismissal law, dismissal legislaton does not simply underpin the accrued contractual rights of the employees; the framework of implied and express terms through which the partes' reciprocal rights and obligatons are expressed rests upon the capacity of dismissal law to stabilise the employment relatonship. Dismissal protecton is also an essental bulwark of those fundamental employment rights which are currently recognised by Britsh legislaton: these include rights in relaton to trade union membership, health and safety protecton, the protecton of pregnancy and maternity and, by extension from the ant-discriminaton legislaton, rights to equal treatment on the grounds of sex, race, disability, religion or belief, sexual orientaton and age. Dismissal legislation: forms, aims and impact Forms of dismissal legislation Dismissal legislaton in Britain takes the form of rights conferred on the individual employee against his employer, and administered by the specialised system of labour courts, the employment tribunals, charged with the task of interpretng and enforcing employment protecton legislaton.

Unfair dismissal

The regulaton of dismissal may take a collectve as opposed to an individual form e.g. the US where regulaton exists in the form of arbitraton under the umbrella of collectve bargaining agreements. In the UK, the law accords collectve relatons an important role in the regulaton of economic dismissals, where workforce representatves have the right to be consulted over planned redundancies (TULRCA 1992 ss188 et seq, and ICER 2004 Reg 20). Collectve arbitraton over dismissals also exists, but for the most part alongside and not by way of substtuton for unfair dismissal protecton (ERA s 110 provides a power to exempt employees from the scope of the unfair dismissal provisions of the Act where a collectve dismissal procedures agreement, designated by order of the SoS, is in place). One advantage of arbitraton, in additon to the possible reducton of legalism in procedures, is that the arbitrator is closer to the partes concerned than a labour court can be, and may as a result be in a beter positon to award reinstatement. However, there is disagreement on the queston of whether American arbitraton is any more efectve than the individual model in protectng employees against the exercise of managerial prerogatve (Collin, Glasbeck, Finkin); it also sufers from the weakness of providing protecton only in those workplaces where unions are established as representatve bargaining agents and have established collectve agreements containing job security provisions. Aims and influences The apparent goal of dismissal legislaton, namely the achievement of greater employment security, is neither straightforward in itself, nor the only or even principal objectve of statutory interventon. Various meanings of employment security - Buchtemann Job security - can be taken to imply that a worker is protected in the partcular job which he holds; this in turn presupposes the existence of quite rigid job classifcatons and, from a regulatory perspectve, the placing of limits on the employer's right to change those classifcatons at will. Employment security - in its widest sense could be taken to refer to the availability of employment opportunites in a given economy; if this is the goal, economic and regulatory policy should be concerned to maximise the chances of employees fnding a job and being able to move between jobs throughout their career, rather than being protected in relaton to a given job which they might hold at any one tme (Lindbeck and Snower). Dismissal legislaton does not neatly ft either of these defnitons. It rarely goes to the lengths of grantng a worker absolute protecton in relaton to a specifc job classifcaton; but nor is it concerned simply with individuals' opportunites in the labour market. It focuses instead on employees' positons within employing organisatons, and operates on the disciplinary and managerial powers of employers in relaton to those who are employees, and not in relaton to those who are job seekers or applicants for employment. Buchtemann - the term employment security should be distnguished from de facto employment stability. The later describes a situaton in which stable, long term employment relatonships are the norm, which may occur even in systems, such as that of the USA, where there are few legal or other controls over managerial prerogatve (Addison and Castro). This situaton may persist, thanks to economic circumstances or to shared expectatons of the contractng partes, but it cannot be said

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