8 Termination of Employment

1. 8 Termination of Employment (Part 1)

2. Is it a dismissal? • Resignation of the employee • Mutual agreement • Frustration of contract

3. Making a claim of unfair dismissal Eligibility: • Employees of the dismissing employer • One year’s continuous service • Illegal contract • Not police officers

4. Potentially fair reasons for dismissal • Lack of capability or qualifications • Bad conduct • Redundancy • Statutory ban • Some other substantial reason • Retirement

5. Capability issues Employer must • Help employee try to improve • Support performance with supervision and training • Take due account of illness

6. Conduct • Gross misconduct • Suspension • Summary dismissal • Misconduct • Warnings

7. Reasonableness • The fact underlying the belief must be established • The belief must be held on reasonable grounds, after an appropriate investigation • The investigation must be reasonable, in the circumstances

8. Statutory ban Examples: Banned from driving when job involves driving • Placed on sex offenders’ register when job is working with children

9. Some other substantial reason Examples: • Pressure from external source to dismiss • Reorganisation of the business • Mistaken belief

10. Retirement • Retirement age • Statutory procedure

11. Statutory dismissals and disciplinary procedure (DDP) • Step 1 – letter setting out allegations • Step 2 – meeting to discuss allegations • Step 3 – possible appeal against decision

12. DDP Modified version • Step 1 – letter explaining reasons for dismissal • Step 2 – possible appeal

13. Statutory grievance procedure • Step 1 – write letter setting out grievance • Step 2 – meeting to discuss grievance • Step 3 – possible appeal against decision

14. Statutory grievance procedure Modified version • Step 1 – employee writes a letter setting out the grievance • Step 2 – employer writes back with a response

15. Polkey defence • DDP must be followed • Would following additional company procedure have made any difference?

16. Gibbons Report • Repeals the statutory procedures • Provides clear and simple guidelines for employers on handling grievances and dismissals in the workplace • Provides incentives for complying with the guidelines through the employment tribunals continuing to consider reasonableness of actions when making awards and cost orders

17. Disciplinary warnings ACAS guidelines: • Informal warning • Formal warning (that remains on the employee’s record for six months) • Final written warning (that remains on the employee’s record for 12 months) • Dismissal

18. Right to be accompanied • Trade union representative • Colleague

19. Constructive dismissal • There was a fundamental breach of the contract on the part of the employer • The breach of the contract caused him or her to resign • There was no significant delay in resigning

20. Automatically unfair dismissal • Most require no qualifying period • Not following DDP is automatically unfair dismissal – but the one-year qualifying period is still required

21. Remedies • Compensation • Re-instatement • Re-engagement

22. Compensation • Basic award • Compensatory award • Increases and deductions