Unfair Dismissal Essay
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ESSAY 1 - Unfair dismissal: light touch For an employee, after the qualifying period of one year, to claim unfair dismissal under the Employment Rights Act 1996, he must be able to show dismissal by the employer, via an expiry of a long term contract, constructive dismissal, or other potentially fair reason, and in the latter case, that the employer did not act reasonably. It is correct to say that unfair dismissal law is 'light touch' as it imposes few constraints on employers' powers of discipline and dismissal. In this way managerial prerogative in this part of the employment relationship reins large. Thus "'economic prosperity' [of employers] dominates 'social justice' [of employees]" (Saunders, 2009). This is unfortunate, especially as the power of dismissal is the "fiercest sanction which backs up managerial authority to direct the workforce" and dismissal law has become the "tail [wagging] the whole dog of employment relation"(Collins). Unfair dismissal is 'light touch' by imposing few constraints on employers' powers of discipline and dismissal in that employers have a wide range of potentially fair reasons to dismiss an employee, the courts are too deferential to the reasonableness of that decision to dismiss, the employee is not able to claim damages for the manner of their dismissal nor can a trust duty be implied into dismissal proceedings or express disciplinary procedures give rise to damages, and finally there are many procedural hurdles for the employee claimant to overcome making it difficult for them to challenge any employer decision. First, Section 98(1)(b) of the Employment Rights Act includes "some other substantial reason" in addition to those spelled out in subsection (2) for potentially fair reasons for dismissal. The courts' interpretation of this has been very generous and wide. This 'light touch regulation' has allowed employers much greater lee-way in dismissing employees for a whole host of reasons. This means there are fewer constraints on employers' powers of discipline and dismissal. Examples of the courts' extension of 'some other substantial reason' (SOSR) are bountiful. In Mohamed the court said: "it is always open to an employer to reorganise in the interest of efficiency or economy or for some other reason in the interest of the business" Mrs M was an office supervisor and she had difficulties with two of supervisees who were found to be at fault. The employers separated Mrs M from those two employees with the result that she was deprived of her supervisory role; she refused to accept changes and was dismissed. This was an SOSR dismissal which demonstrates the court's broad approach and managerial prerogative. InCatamaran Cruises a business in financial difficulties was taken over by new owner who negotiated changes in positions with trade union. Most employees accepted changes but a few did not and so were dismissed. Again this was held to be a SOSR dismissal. The courts have extended SOSR far too far e.g. Saunders - Mr S was a maintenance man at children's camp; he was dismissed on grounds of homosexual activities even though he had no contact with children, but his employers thought it not suitable to employ any person with such tendencies. This was held to be a potentially fair reason. In Perkin the Court of Appeal held that dismissal as a result of an employee's difficult personality was a potentially fair dismissal for SOSR, and in Klusova that a
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Subject Area - Law Unfair Dismissal
In an action for unfair dismissal, it is for the employer to prove that there were grounds for dismissal, and that in thecircumstances the dismissal is fair.Five potentially fair reasons for dismissal have been set out at Section 98 of the Employment Rights Act 1986. Theseare as follow:-Lack of appropriate qualications or capability This will only be fair if the missing qualication is essential to the proper performance of the job. Interestingly, inLitster v Thom & Sons Ltd (1975) an employee was found to be unfairly dismissed after dismissal for failing to obtain aHGV licence, which had been stipulated as a condition of employment. It was held that the employee could serve theemployer in other ways.Negligence may justify dismissal. By way of example, in Taylor v Alidair Limited, Mr Taylor was a trained pilot, who wasdismissed for causing damage to a plane (and a fright to its passengers) after a bad landing. The court of appeal held thatthe degree of professional skill required in that case was so high, and the consequences of from that high standard wasso serious that one failure to perform in accordance with those standards was enough to justify the dismissal.the employees conduct Whether the conduct justies dismissal will be a question of fact in each case. Lying, ghting, theft, or dangerous behaviour would undoubtedly justify a dismissal. Other scenarios such as being rude, or failing to cooperate withmanagement, or drinking on duty, may also be fairly dismissed.Conduct in an employees spare time may also justify dismissal if it reects adversely on the employee’s suitability for a job – such as theft. Sleeping with the wife of the employer outside ofce hours was held to justify dismissal in Whitlow v Alkanet Construction (1987)However, if the lack of capability is caused through the fault of the employer, for example, through its failing to providetraining or supervision, the dismissal would be unfair.the employee was redundant An employer must show that the employee has been fairly selected. The onus would fall to the employer to show thatthe reason for Gillian’s selection was fair. The EAT laid down guidelines for good industrial practice in redundancies in Williams v Compare Maxam Limited. This requires consideration as to whether objective selection criteria were chosenand fairly applied; whether the possibility of transfer to other work was investigated; whether employees were warnedand consulted and whether any union was consulted.the continuance of employment would result in illegality any other substantial reason.