A more recent version of these Unfair Dismissal Essay notes – written by Oxford students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our Labour Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
ESSAY 1 - Unfair dismissal: light touch For an employee, after the qualifying period of one year, to claim unfair dismissal under the Employment Rights Act 1996, he must be able to show dismissal by the employer, via an expiry of a long term contract, constructive dismissal, or other potentially fair reason, and in the latter case, that the employer did not act reasonably. It is correct to say that unfair dismissal law is 'light touch' as it imposes few constraints on employers' powers of discipline and dismissal. In this way managerial prerogative in this part of the employment relationship reins large. Thus "'economic prosperity' [of employers] dominates 'social justice' [of employees]" (Saunders, 2009). This is unfortunate, especially as the power of dismissal is the "fiercest sanction which backs up managerial authority to direct the workforce" and dismissal law has become the "tail [wagging] the whole dog of employment relation"(Collins). Unfair dismissal is 'light touch' by imposing few constraints on employers' powers of discipline and dismissal in that employers have a wide range of potentially fair reasons to dismiss an employee, the courts are too deferential to the reasonableness of that decision to dismiss, the employee is not able to claim damages for the manner of their dismissal nor can a trust duty be implied into dismissal proceedings or express disciplinary procedures give rise to damages, and finally there are many procedural hurdles for the employee claimant to overcome making it difficult for them to challenge any employer decision. First, Section 98(1)(b) of the Employment Rights Act includes "some other substantial reason" in addition to those spelled out in subsection (2) for potentially fair reasons for dismissal. The courts' interpretation of this has been very generous and wide. This 'light touch regulation' has allowed employers much greater lee-way in dismissing employees for a whole host of reasons. This means there are fewer constraints on employers' powers of discipline and dismissal. Examples of the courts' extension of 'some other substantial reason' (SOSR) are bountiful. In Mohamed the court said: "it is always open to an employer to reorganise in the interest of efficiency or economy or for some other reason in the interest of the business" Mrs M was an office supervisor and she had difficulties with two of supervisees who were found to be at fault. The employers separated Mrs M from those two employees with the result that she was deprived of her supervisory role; she refused to accept changes and was dismissed. This was an SOSR dismissal which demonstrates the court's broad approach and managerial prerogative. InCatamaran Cruises a business in financial difficulties was taken over by new owner who negotiated changes in positions with trade union. Most employees accepted changes but a few did not and so were dismissed. Again this was held to be a SOSR dismissal. The courts have extended SOSR far too far e.g. Saunders - Mr S was a maintenance man at children's camp; he was dismissed on grounds of homosexual activities even though he had no contact with children, but his employers thought it not suitable to employ any person with such tendencies. This was held to be a potentially fair reason. In Perkin the Court of Appeal held that dismissal as a result of an employee's difficult personality was a potentially fair dismissal for SOSR, and in Klusova that a
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