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Dismissal and Redundancy

Dismissal and Redundancy. Dr Katarzyna Gromek-Broc. Dismissal and Redundancy. Themes How far should the law go to control managerial discretion? How effective is the law to control managerial discretion over dismissals?. Reasons to introduce the statutory right not to be unfairly dismissed.

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Dismissal and Redundancy

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  1. Dismissal and Redundancy Dr Katarzyna Gromek-Broc

  2. Dismissal and Redundancy Themes • How far should the law go to control managerial discretion? • How effective is the law to control managerial discretion over dismissals?

  3. Reasons to introduce the statutory right not to be unfairly dismissed • ILO Convention 119 of 1963 on Termination of Employment an employer should not dismiss an employee without valid reason and sufficient cause, and without the dismissed employee having a right to have recourse to an independent tribunal to determine the issue and decide an appropriate remedy • Royal Commission on Trade Unions and Employers’ Associations (Donovan) 1968 para 528: ‘In 1964-66 some 276 unofficial strikes took place each year on average as a result of disputes about whether individuals should or should not be employed, suspended or dismissed ... para 529: ‘For these reasons we believe it urgently necessary for workers to be given better protection against unfair dismissal.’

  4. Termination in Common Law Variation of employment contract • Contract may allow to change • The parties may agree to vary the contract • Collective agreement may alter existing terms • Contract may be brought to its end (doctrine of frustration) • Employer may vary - breach of contract?

  5. Wrongful dismissal • occurs when an employer dismisses an employee without notice, or with insufficient notice • it will not be wrongful dismissal if an employer dismisses for a completely arbitrary or malicious reason - the employer does not need a reason for dismissal, provided adequate notice is given • an employer can dismiss without notice if he has good cause - this is known as summary dismissal, eg for gross misconduct

  6. Wrongful Dismissal Basis: common law Time limit: 6 years Coverage: all employees An employer can dismiss for any reason provided that notice is given Remedy: damage limited to the net salary for the notice period: Tribunals: up to £ Unfair dismissal Basis, statute ERA 1996 Time limit: 3months Coverage: only employees meeting the qualifying period of 1 year A dismissal is only fair if the employer can show that the decision to dismiss was reasonable Remedy: £ 72.000 Comparison of wrongful dismissal and unfair dismissal

  7. Can the common law be used to protect job security? • Automatic theory of contractual termination Sanders v. Ernest A Neale [1974] IRLR 236 NIRC Robert Cort & Son Ltd v. Charman [1981] IRLR 437 EAT (effective date of termination is the date of the dismissal) R v. Lord Chancellor’s Department, ex parte Nangle [1991] IRLR 343 High Court • Elective theory of contractual termination • Gunton v. Richmond-upon-Thames LBC [1980] ICR 755 CA • Boyo v. Lambeth London Borough Council [1995] IRLR 30 CA

  8. THE AIMS OF THE UNFAIR DISMISSAL / REDUNDANCY LAW • the protection of fundamental human rights • the protection of property rights in jobs • the promotion of labour market flexibility • the enhancement of managerial efficiency

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