Unfair Dismissal Notes

Discipline and termination of employment

Introduction

Law governing termination of employment occupies a central place in modern labour law: substantial proportion of litigated disputes arise out of terminations of the employment relationship.

The legislation on unfair dismissal represents a major incursion into the common law, limiting the employer’s otherwise open-ended power to bring the contract of employment to an end without the need for substantive justification, and imposing general standards of procedural fairness upon the process of dismissal.

Redundancy payment legislation, the other major area of statutory intervention, grants the employee the right to compensation, based loosely on the principle of seniority, for the loss of a job on economic grounds.

The law relating to unfair dismissal and redundancy is about much more than the process of termination and its results; it affects the entire structure of the employment relationship. Just as the power of dismissal is the “fiercest sanction which backs up managerial authority to direct the workforce”, so dismissal law has become the “tail [wagging] the whole dog of the employment relation (Collins).

The forms which govern the circumstances in which dismissal is legitimate indirectly set the limits to the employer’s power to operate lesser disciplinary sanctions, such as suspension or demotion; accordingly also concerned with the law relating to disciplinary procedures and the extent of the employer’s power to impose sanctions short of dismissal.

Statutory intervention has also qualified the employer’s common law rights to insist on unilateral changes to terms and conditions of employment. As long as the employer could terminate the contract of employment at will or on short notice, it effectively had the right to dismiss and re-employ on those terms which it deemed acceptable. Now that this power of the employer is limited by the principles of unfair dismissal law, dismissal legislation does not simply underpin the accrued contractual rights of the employees; the framework of implied and express terms through which the parties’ reciprocal rights and obligations are expressed rests upon the capacity of dismissal law to stabilise the employment relationship.

Dismissal protection is also an essential bulwark of those fundamental employment rights which are currently recognised by British legislation: these include rights in relation to trade union membership, health and safety protection, the protection of pregnancy and maternity and, by extension from the anti-discrimination legislation, rights to equal treatment on the grounds of sex, race, disability, religion or belief, sexual orientation and age.

Dismissal legislation: forms, aims and impact

Forms of dismissal legislation

Dismissal legislation 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 interpreting and enforcing employment protection legislation.

The regulation of dismissal may take a collective as opposed to an individual form e.g. the US where regulation exists in the form of arbitration under the umbrella of collective bargaining agreements. In the UK, the law accords collective relations an important role in the regulation of economic dismissals, where workforce representatives have the right to be consulted over planned redundancies (TULRCA 1992 ss188 et seq, and ICER 2004 Reg 20). Collective arbitration over dismissals also exists, but for the most part alongside and not by way of substitution for unfair dismissal protection (ERA s 110 provides a power to exempt employees from the scope of the unfair dismissal provisions of the Act where a collective dismissal procedures agreement, designated by order of the SoS, is in place).

One advantage of arbitration, in addition to the possible reduction of legalism in procedures, is that the arbitrator is closer to the parties concerned than a labour court can be, and may as a result be in a better position to award reinstatement. However, there is disagreement on the question of whether American arbitration is any more effective than the individual model in protecting employees against the exercise of managerial prerogative (Collin, Glasbeck, Finkin); it also suffers from the weakness of providing protection only in those workplaces where unions are established as representative bargaining agents and have established collective agreements containing job security provisions.

Aims and influences

The apparent goal of dismissal legislation, namely the achievement of greater employment security, is neither straightforward in itself, nor the only or even principal objective of statutory intervention.

Various meanings of employment security - Buchtemann

Job security – can be taken to imply that a worker is protected in the particular job which he holds; this in turn presupposes the existence of quite rigid job classifications and, from a regulatory perspective, the placing of limits on the employer’s right to change those classifications at will.

Employment security – in its widest sense could be taken to refer to the availability of employment opportunities in a given economy; if this is the goal, economic and regulatory policy should be concerned to maximise the chances of employees finding a job and being able to move between jobs throughout their career, rather than being protected in relation to a given job which they might hold at any one time (Lindbeck and Snower).

Dismissal legislation does not neatly fit either of these definitions. It rarely goes to the lengths of granting a worker absolute protection in relation to a specific job classification; but nor is it concerned simply with individuals’ opportunities in the labour market.

It focuses instead on employees’ positions within employing organisations, and operates on the disciplinary and managerial powers of...

Buy the full version of these notes or essay plans and more in our Labour Law Notes.