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LPC Law Notes Employment Law Notes

Wrongful Dismissal Model Answer Notes

Updated Wrongful Dismissal Model Answer 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:

CAN EMPLOYEE MAKE A CLAIM OF WRONGFUL DISMISSAL?

  • Wrongful dismissal is a common law contractual claim based on the fact that the dismissal by the employer was in breach of contract; this can arise when:

  1. An indefinite term contract is terminated with no notice or short notice

  2. A fixed term contract is terminated before the expiry of the fixed term, with or without notice, where there is no break clause

  3. An employee establishes that he has been constructively dismissed

Termination by notice

  • An indefinite contract of employment may be terminated by notice. If proper notice is given by the employer, no wrongful dismissal claim will arise because the employer has acted within the terms of the contract of employment.

  • There are 3 sources of notice period within the contract:

  1. Express term – Parties are free to contract as long as they abide by the statutory minimum (see below)

  2. Implied term – where there is no express term, it is an implied term that ‘reasonable’ notice is to be given; this can depend on seniority of employee:

    1. Unskilled and semi-skilled employees – reasonable notice unlikely to exceed the statutory minimum (see below)

    2. Professional employees (solicitors, accountants, highly-skilled technical employees, scientists, middle-managers etc.) – three to six months

    3. Very senior employee (managing director) – around 12 months

  3. Statutory minimum – The expressly stated notice period must not be less than the statutory minimum; naturally therefore the longer of the two will be the relevant timeframe. The minimum notice periods that can be given by an employer is the statutory minimum as prescribed by s86(1) ERA 1996 are as follows:

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

Fixed term contracts

  • If the employer or employee terminates a fixed term contract, with or without notice, before its expiry date, there will be a breach of contract unless:

  1. The other party is in repudiatory breach of the contract; or

  2. There is express power in the contract allowing early termination (a break clause); or

  3. The termination is by mutual agreement

Constructive dismissal

  • For an employee to establish constructive dismissal:

    • The employee must successfully argue a repudiatory breach of an express term or implied term of the employment contract (e.g. implied duty of mutual trust and confidence; change of rate of pay; change of job description)

    • The employee must resign within a reasonable time of the breach so not to waive the breach (what is reasonable will differ on the facts)

    • The employee must inform the employer of the fact that he has resigned
DAMAGES FOR WRONGFUL DISMISSAL

General

  • Aim – Put the employee in the position had the employee been dismissed in accordance with the terms of the contract (Boyo v Lambeth London Council)

  • Remoteness (Hadley v Baxendale) – Losses that arise naturally from the breach that should reasonably have been in the contemplation of the parties at the time of contract

Particular heads of damage:

Salary

  • Net salary for the proper notice period or remainder of the fixed term

  • Where there is a break clause in a fixed term contract, it is the net salary which would have been earned during the period of notice due under the break clause

  • Consider the effect of PILON

  • You may be given the salary figure in gross, ensure you explain that it is awarded net

Holiday

  • The employee is entitled to payment in lieu of any holiday to which he was entitled, under his contract of employment or regulation 14 of the Working Time Regulations 1998 (28 days for a 5-day per week employee), but has not yet taken

  • In a fixed term contract, since contractual damages assume that the employee has been dismissed in accordance with the terms of the contract (i.e. the entire fixed term has passed), the employee will be entitled to the holiday for the remainder of the fixed term

Bonus

  • The general rule is that the employee is only awarded damages for loss of benefits to which he was contractually entitled and not ‘discretionary’ (discretionary can relate to a decision to pay the bonus, how to calculate it, the amount etc. – Small and Others v Boots Co Plc) payments such as Christmas bonuses or annually salary increases (Lavarack v Woods of Colchester). However in (Clark v BET and Another), the court said that contractual provisions relating to salary increases and ‘discretionary’ bonus scheme entitlement under contract must be interpreted realistically and not on the basis that any discretion would have been exercised to give the employee the least possible benefit. Therefore, a realistic figure based on previous figures, the company’s current performance and...

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