Labour Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB labour law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best Employment Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest r...
The following is a more accessible 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:
TERMNATION OF CONTRACT OF EMPLOYMENT
Can identify 3 different termination types:
Bilateral terminations – mutual agreement terminations (Birch v University of Liverpool [1985])
Non-lateral terminations – by operation of law (eg frustration or the death of the employer).
Unilateral terminations – dismissal by the employer, or resignation.
Focus on unilateral termination by the employer.
Can identify 2 categories of dismissals:
Legality of dismissal: Lawful and unlawful/wrongful dismissals
Nature of dismissal: Outright/summary and constructive dismissals.
Focus on the distinction between lawful/wrongful dismissals.
Generally at common law, an employer is able to get rid of its employees on an indefinite contract without having to show good reason (McClory v Post Office-1992).
However, CL will treat employer as having terminated the contract of employment unlawfully where it fails to provide the employee with reasonable notice of dismissal [nor a payment made to the employee in lieu of notice] (this will breach either an express or an implied term).
Will afford employee a ‘wrongful dismissal’ claim for damages in respect of net wages/salary + other contractual benefits during notice period.
If ‘reasonable notice’ given – lawful unilateral termination (Baxter v Nurse (1844)).
THE NOTICE RULE:
Common law: contract terminable by either side upon reasonable notice.
CL rule is contingent on 3 factors: (i) custom of employee’s trade (ii) standing of individual’s job (iii) frequency of payment of wage/salary [ie 1 week’s notice where payment is weekly].
This CL rule is restricted to contracts of employment of an indefinite period (Reda v Flag Ltd). NB most contracts are of an indefinite period.
The employer therefore has ‘unrestricted notice power’…and the employee is arguably placed in a precarious position.
Jurisdiction (France) has a ‘just cause’ regime barring employer from dismissing, without cause.
In USA, the ‘employment-at-will doctrine developed, providing for lawful termination on summary, rather than reasonable notice – very flexible approach to hiring and firing:
Collins – contributes to comparable mobility of US labour market. UK preferred the approach of including an (often) implied term that must give reasonable notice.
3 possible justifications/motivations for UK CL harnessing ‘unrestricted notice rule’:
By affording generous power of dismissal, protected freedom of workers to strike w/o breaching contract.
Was thought preferable to retain some elements of the ‘master/servant’ law in the contract of employment. Enables employers to maintain discipline in the workplace. Employee is focused because they know they can be fired at any moment.
Judicial articulation of a specific philosophical approach channeled through the courts
Freedland – Rarely ever questioned by the courts…courts treated unrestricted notice rule as an axiomatic feature of the legal contract of employment even if that orthodoxy was sometimes out of touch with social/economic reality.
1960s: Greater demands for greater protection from dismissal (Ridge v Baldwin)contributed to statutory unfair dismissal regime which was intended to confer a higher degree of security of tenure in favour of employees than that afforded by common law.
Statutory regulation:
Section 86(1) ERA prescribes statutory minimum periods of notice with which the employer must comply. Takes effect as implied terms but employer must abide by an express term if included.
In modern workplace, only on rare occasions will the contract lack an express term as to notice.
Period of continuous employment | Period of notice |
More than 1 month, less than 2 years | Not less than 1 week |
2 years or more but less than 12 years | Not less than 1 week for each year of continuous employment |
12 years or more | Not less than 12 weeks |
S86(2)- employee who’s continuously employed for 1 month or more must be given not less than 1 week’s notice to terminate contract of employment.
S86(3)- PILON (waiving right to notice in return for pay in lieu of notice).
Court will never imply a lower notice period but may imply a higher one (Hill v Parsons).
Newcastle Hospitals NHS Foundation Trust v Haywood 2018- in absence of express term, contractual notice of termination takes effect when it comes to employee’s attention and they read it or have had the opportunity to do so [not when notice was sent]
Termination by the employer on notice is statutory dismissal. Such dismissal may or may not be fair depending on which it was carried out.
Johnson v. Unisys [2001] |
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Wrongful dismissal action isn’t concerned with wrongfulness of the dismissal itself, the law entitles both ER+EE to terminate relationship without cause. A wrong only arises if ER breaches contract by failing to give the dismissed EE reasonable notice of termination and remedy for this breach of contract is an award of damages based on the period of notice which should’ve been given. |
DISMISSAL AND BREACH OF CONTRACT OF EMPLOYMENT AT COMMON LAW:
THE EMPLOYER’S UNRESTRICTED POWER OF DISMISSAL BY REASONABLE NOTICE
Employer not required to have any reason to dismiss an EE or even hear the EE prior to dismissal or give reasons for dismissal (McClory v Post Office 1992).
Only have to give the highest of:
Reasonable notice
Notice period in written contract of employment or
Statutory min in s86 ERA
If none of these are given, wrongful dismissal claim in damages.
Malloch v Aberdeen Corp (1971) |
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Lord Reid: At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid |
In Johnson v Unisys, Reda v Flag and Eastwood v Magnox Electric- HOL+ PC ruled that the unrestricted reasonable notice rule cannot be constrained by the implied term of mutual trust+ confidence.
Reda v Flag Ltd (2002)- unrestricted reasonable notice rule is merely an implied default...
Buy the full version of these notes or essay plans and more in our Labour Law Notes.
Labour Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB labour law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best Employment Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest r...
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