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LPC Law Notes Employment Law Notes

Wrongful Dismissal I Tutorial Notes

Updated Wrongful Dismissal I Tutorial Notes

Employment Law Notes

Employment Law

Approximately 388 pages

A collection of the best LPC Employment notes the director of Oxbridge Notes (a former Oxford law graduate) could find in 2014 after combing through seventeen LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of Employment Law notes available in the UK this year. This collection of notes is full...

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The following is a more accessible plain text extract of the PDF sample above, taken from our Employment Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

INTRO
TERMINATION OF EMPLOYMENT

  • Claim based on breach of contract; what does the contract say about termination?

  • Two main categories of employment contract; fixed and rolling:

  • FIXED

  • ROLLING

  • Senior employees (lawyers, doctors etc.), ‘reasonable’ notice period likely to be 3-6 months

  • Very senior employees (MD etc.), ‘reasonable’ notice period could be as much as 12 months
ACTIVITY 1 – STATUTORY NOTICE PROVISIONS

  • S.86 minimums:

Employed for… Minimum notice…
1 month 1 week
2 years 2 weeks
3 years 3 weeks (etc…)
12 years 12 weeks (maximum)
40 years 12 weeks

  • 1 – 4 weeks less than statutory minimum

  • 2 – contract longer than the statutory provision; longer prevails

  • 3 – same as 2; longer period prevails
TERIMATION BY AGREEMENT AND PILONS

  • Parties can always, where such agreement is genuine, agree to end the contract at any time; neither will be in breach and no claim of WD will arise

  • This may arise where:

    • There is a long notice period (perhaps 6 months or more); in this case the employer may waive the notice period or allow the employee to work a shorter notice period (especially when that employee wants to pursue other employment)

    • There is a fixed term contract and the project comes to an end earlier than contractually anticipated

    • The employee agrees to accept a PILON; if the employer for example asks to terminate the contract without notice due to a downturn in business, the employee may accept the termination if given salary for the notice period to which he was entitled; PILONS are quite common and won’t give rise to problems as long as (i) the employee genuinely agreed to waive the notice, or (ii) there is a provision in the contract allowing the employer to make such a payment

      • There will be no agreement if the employer simply terminates the contract and imposes a payment in lieu of notice without agreement from the employee; in such a case the employer is in breach of contract and a WD claim may result
SUMMARY DISMISSAL AND EMPLOYEE’s REPUDIATORY BREACH

  • Employer wants to terminate employee’s contract immediately as the employee has committed a repudiatory breach of the contract…

  • Stealing for example; the employer will want to dismiss the employee straight away

  • Dismissal without notice, or without the ending of the fixed term, is known as summary dismissal… if the employee is guilty of repudiatory conduct, the employee will not be able to complain of WD in relation to that summary dismissal… the employee has committed a repudiatory breach of contract first and the summary dismissal is simply a reaction to that breach

  • These are situations where the employee has undermined the contract that exists between himself and the employer

  • Before the employer decides to summarily dismiss an employee, the employer must be certain that the conduct they are complaining of is a repudiatory breach of contract(carry out a full investigation and follow a disciplinary procedure to enable the employee to put forward his side of the story); the summary dismissal of an employee who’s misconduct is not sufficiently serious enough to be a repudiatory breach may give rise to a claim of WD… indeed a lot of cases arise where the employee argues that their conduct did not amount to a repudiatory breach
CONSTRUCTIVE DISMISSAL AND EMPLOYER’S REPUDIATORY CONDUCT

  • Usually if the employee resigns the contract terminates and the employee has no claim of WD

  • However if the employee resigns due to the employer’s repudiatory breach, it may do

  • A constructive dismissal occurs where employer is guilty of a repudiatory breach of contract that allows the employee to resign in response

  • If the employee does resign, the employee will have a claim of WD

  • If the employer only commits minor breaches of the contract, the employee won’t be justified in resigning, unless it comes as the ‘last straw’ (last in a long line of minor breaches); in this case the employee’s resignation may be justified when the employer’s actions are looked at as a whole
ACTIVITY 2 – CONSTRUCTIVE DISMISSAL

  • Breach of the implied term of trust and confidence will always be repudiatory
MAKING A CLAIM

  • Dismissed employee will have to decide whether to take the case to a tribunal or a civil court

  • Disadvantages of employment tribunal:

    • Employment tribunal can only award damages; no injunction can be awarded and can’t bring the claim before the employment is ended

    • Employee must bring case within 3 months of dismissal/resignation, otherwise the tribunal has no jurisdiction

    • Damages limited to 25,000 even where the employee’s...

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