Unfair Dismissal Including Empirical Data Notes

UNFAIR DISMISSAL

QUICK SUMMARY:

Unfair Dismissal:

1. Are they an employee (work under contract of employment)

2. Qualifying period (2 years)

3. Dismissal- ER terminates w/o notice or ER is dismissed.

4. Reasons- potentially fair and was it reasonable for ER to treat the reason as sufficient reason for dismissing the employee? (burden on ER).

5. Was it procedurally fair? (inc Breach of ACAS code)- breach of ACAS code isn’t inherently unfair, just get statutory uplift.

6. Remedies- reinstatement, re-engagement, compensation (basic award- based on job security+ length of service, compensatory- s123). Also Polkey- even if dismissal was procedurally fair, would’ve dismissed anyway so damages reduced.

Wrongful Dismissal:

1. Dismissal w/o notice period.

2. Gunton Extension

Then if relevant:

3. Stigma- Malik

4. Express Procedure Breached- Edwards

5. Psych- Johnson, Eastwood.

• Legal intervention warranted: dismissals generate social costs for employees, governments and taxpayers e.g govs regulate employment relationships by restricting range of feasible contracts+ raise costs of laying off workers+ increasing hours of work. However:

• Botero et al: ‘heavier regulation = lower labour force participation and higher unemployment’.

• Contrast the neo-classical economists with new institutional economists.

• NIE’s are unconvinced with economic arguments that markets always produce efficient outcomes.

• Freyen and Oslington – Australian research that noted a relaxation in protective legislation did not have any real effect on economic costs to businesses.

• Data often skewed coz OECD publishes stats on rigidity of unjust dismissal laws consulted by MNCsMNCs prefer to invest in countries with lower unfair dismissal costsincentivises jurisdictions not to implement inflexible laws that deter inward investment.

Structure, nature, content and shape of unfair dismissal laws:

• When policy decision made to offer protection, need to determine the form/content of the protection.

• Job security – regulation functions to entrench the position of an employee in a job as effectively as possible or to offer sufficient monetary compensation in return for the recognition of the employer’s power to dismiss (ie UK’s wrongful dismissal laws)- nb this is weak form.

• Strong form of job security:Human right not to deprive EE of job, state treats dismissal as void.

• Employment security – concession that, during their working lives, employees will be expected to adapt to changing methods of work, to reskill and even to lose their jobs.

• Collins – innovation/technological change = employment security should be prioritised over job security to ensure economies remain competitive. Invest in training etc to reduce period between works.

• UK policy in favour of employment security/enhanced employability over job property/security. Why?

1. EU policy has focused on desire to achieve ‘flexicurity’ – sees employment engagement in a transitional sense, representing opportunity to acquire skills before moving to engagements with other employers.

2. ‘Range of reasonable responses test’ – standard of review is at a lax level. Part of a broader shift from substantive fairness to procedural fairness which highlights judicial abandonment of job security.

3. Disinclination of tribunals/courts to order reinstatement or re-engagement of unfairly dismissed employees in terms of power conferred upon s113-115 ERA 1996

• From April 2016-April 2017 – employment tribunal statistics reveal that reinstatement/engagement in only 3 cases out of 5, 241 which proceeded to tribunal.

• UK adoption of ILO Recommendation 119 of 1963 on the termination of employment provided impetus to provide greater protection, which is now enshrined in Part X of the ERA.

• The first unfair dismissal statutes were implemented to try and stop industrial action. Lots of strikes were occurring in response to dismissals.

• However, employees no longer needed unions to pursue claims as they could go through tribunals. Now that unions are in decline and the tribunal fees have done up, the unfair dismissal regime is extremely weak.

ERA 1996 Part X

• Simple explanation of the process:

1. Show employment tribunal that he is eligible to present complaint of unfair dismissal by satisfying essential crtieria and employee must not fall within an excluded category.

2. EE must show they’ve been dismissed in terms of definition in s95(1) ERA.

3. If EE does this onus shifts on ER to show it had a valid reason for dismissal of employee (s98(1),(2),(3) ERA OR

4. EE can seek to proe that the reason for their dismissal was automatically unfair.

5. Reasonableness of dismissal examined s98(4)

• S94 ERA: “Employee has the right not to be unfairly dismissed”

• What does that actually mean? Right to have claim heard? There is no reengagement/re-instatement offered. Clear indication of how weak the legislation really is.

• S111 ERA: “Complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer”

• Implication = not in Court. Parliament intended specialist employment tribunals to deal with claims.

Eligibility to Claim

ESSENTIAL CRITERIA

1. Must be an employee (s.94(1) ERA). -not self-employed/indy contractor!

• NB:...

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