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Wrongful Dismissal TerminationNot every termination is a dismissalStatutory dismissals (s.95 Employment Rights Act 1996):
1. Termination by employer with/without notice
2. Termination of a fixed term contract without renewal on the same terms
3. Constructive dismissal 1 Mutual agreement Not a dismissal for either statutory or contractual purposesIf threat of dismissal was the reason - then there is no genuinechoice and there will have been a dismissal 2 Genuine resignation Not a dismissal for either statutory or contractual purposesIf threat of dismissal was the reason - then there is no genuinechoice and there will have been a dismissal What if invited to resign but only does so once negotiated a payof?Sheffield v Oxford Controls: court should consider the causation, whether it was the threat or other motivations s.86 ERA 1996: employee must give one week's notice (contractcan require more than any SNP) - less notice = breach of contract enforceable by employer (rarely enforced) 3 Dismissal on notice by the employer This is dismissal for both statutory and contractual purposesNotice periods:?
s.86 ERA 1996Employee is entitled to the greater of the contractual notice or the SMN. Continuously employed for more than one month butless than two years: SMN = one week Continuously employed for two years or more butless than 12 years: SMN = one for each complete year of employment week Continuously employed for 12 years or more: SMN =capped at 12 weeksUnless, employer pays in lieu of notice. Clause should specify exactly how the payment willbe calculated and whether includes bonus, commission, holidays, or basic salary. Societe Generale, London Branch v Geys: employershould ensure any PILON is unambiguous. If this procedure is followed there can be nocompensation for wrongful dismissal. NB. Mandatory PILON ('will') or discretionaryPILON ('may') Under discretionary, employee is under aduty to mitigate their loss. Wrongful dismissal = any restrictive covenants are unlikely tobe enforceable (General Billposting) PILON clauses
If employer terminates without PILON - should negotiate a settlement agreement (this will be considered genuine compensation for loss of office) Termination in breach = restrictive covenants will be unenforceable. If covenants are restated in a settlement agreement, additionalconsideration must be paid to make them enforceable. Summary dismissal (without notice or PILON) This is dismissal for both statutory and contractual purposes.Employer only entitled where employee commits serious breach ofcontract that goes to the root of the contract. Constructive dismissal This is dismissal for both statutory and contractual purposes.s.95(1)(c) ERA 1996 = employee who resigns in circumstancessuch that he is entitled to terminate his contract without notice by reason of the employer's conduct is treated as having been dismissed.Employer's conduct must be a fundamental/repudiatory breach of contract.
? Were the employer's actions significant or serious enough to amount to a repudiatory breach of contract? (Note the breach must strike at the root of the contract)
? Was the resignation a direct consequence of the employer's breach?Wright v North Ayrshire Council: it is sufficient that the repudiatory breach "played a part in the dismissal" (Nottingham County Council v Meikle) Compensation may be reduced where there are alsoother reasons.
? Did the employee act promptly and resign, or has the employee 'affirmed the contract' by continuing to work, and effectively waived his right to claim constructive dismissal?Chindove v Morrisons Supermarkets plc: claim does not depend on when the employee resigned --> focus is on employee's conduct in the period leading up to resignation. Constructive dismissal is not a cause of action in itself. Expiration of fixed term contracts End date must be predictable when the contract is made.?
s.1(2) Fixed-term Regulations 2002: a contract which will terminate on: Specific date/after a specified periodCompletion of a particular taskOccurrence or non-occurrence of a specific eventExpiry of a fixed term without renewal is:?
Dismissal for statutory purposesNot a dismissal for common law purposes i.e. can be used for an unfair dismissal claim but not awrongful dismissal claim. Fixed term contracts can have notice clauses.?
If the contract does not contain a notice provision, damages for breaching that contract will run to the end of the fixed term. Protection under Regulations:
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