Dismissal covers such a wide area that it is dealt with under four concise articles from Net Lawman. This is the second.
Maximum and minimum tribunal awards
In most cases, including unfair dismissal cases, the maximum cash awards which can be made by Employment Tribunals are specified by statute.
Top limit for many awards is a multiple of a week's pay.
The absolute maximum limit for basic award where an unfair dismissal occurs after 1st February 2005, amounts to £ 8,400 (30 x £ 280)
Notice periods by employee
The statutory minimum notice to be given by an employee is one week if he has been in continuous employment for at least one month. If employed for less than one month, the common law requirement of reasonable notice will apply.
An employee's contract can validly provide that the employee must give longer notice than the statutory minimum (contract valid even if not in writing).
Apart from in cases regarding constructive dismissal and frustration of contract, it is unlawful for an employee to resign without giving the notice, if any, required by his contract. However, employment contracts are "personal" - the courts will not order specific performance as a remedy for the breach. This means, as an employer, you have little choice but to grin and bear it - or in exceptional cases to sue for damages.
Notice periods by employer
Any employee who has completed one month or more continuous employment with the same employer is entitled to at least a statutory minimum period of notice. He will of course be entitled to longer notice than the statutory minimum if his contract states so.
The statutory minimum notice entitlement ranges from one to twelve weeks as follows:
One week if period of continuous employment is between one month and two years;
One week for each year of continuous employment between two and 12 years;
12 weeks if period of continuous employment is 12 years or more.
Failure by an employer to give the minimum notice required by the Employment regulations Act 1996 is a breach of contract and results in wrongful dismissal.
Death or employer or employee
Death of employer (or employee) normally automatically ends an employment contract. There will be no dismissal and so no possibility of an employee claiming unfair dismissal or dismissal by reason of redundancy.
Pay in lieu of notice
When employees are dismissed it is not uncommon for the employer to pay them lump sums "in lieu of notice" rather than require them to work out their statutory or contractual notice periods. The lump sum will normally be calculated by reference to the remuneration the employee would have earned if he had worked out the notice to which he was entitled.
Strike during notice
An employee who has been given notice of dismissal by reason of redundancy and who then joins a strike could be dismissed by the employer for "misconduct" (i.e. going on strike). This would forfeited his right to redundancy pay.
The Act however, states he will be able to claim statutory redundancy pay provided he works an appropriate number of extra days after the strike is over if the employer has so requested.
Withdrawal of notice
Neither an employer nor an employee who has given notice of termination to the other can unilaterally withdraw it. This position is completely clear once the notice has been accepted by the other or if the other has acted in reliance on.
However, if a “reasonable” bystander would have thought that what is superficially a resignation or dismissal was in reality no more than an unconsidered act which took place "in the heat of the moment" which should not have been taken at face value in the first place, the party may be able to withdraw the termination of employment.
Repudiation of Contract by either party
An employer or employee who breaches a fundamental term of the contract is said to "repudiate" the contract. The other party is then entitled (at his option) to treat the contract as at an end.
If it is the employer who is in serious breach of contract the (ex-) employee will be able to claim compensation for unfair dismissal or wrongful dismissal.
The (ex-) employee will also be automatically released from all primary contractual obligations to the employer.
If it is the employee who is in serious breach of contract, the employer will be entitled to dismiss the employee without notice or compensation.
Suspension of Employee
In most "normal" salaried jobs an employee has no legally enforceable right to work . His employer's only obligation is to pay the agreed salary.
When suspension or lay off is in question, the debate will therefore by whether the employee is entitled to pay during the suspension period, not whether the employer has the right to suspend an employee. This will then depend on the terms, both express and implied, in the contract itself.
If an employer purports to suspend or lay off an employee without pay when he has no right to do so, the suspension may amount to a fundamental breach of contract. In that case the employee will be entitled, if he wishes, to treat the contract as repudiated by the employer.
An employee who is laid off without pay may be entitled to a statutory ‘guarantee payment’ from the employer. If a guarantee payment is not payable, he/she may be able to claim jobseeker's allowance from the State.
Maternity suspension
It may be necessary to suspend a pregnant employee because Health and Safety rules make it illegal for her to work. Since 1994, this will amount to automatic unfair dismissal.
The woman has the right to be offered suitable alternative work before she is suspended if the employer has any available. She has the right to complain to an Employment Tribunal if there is such work but it is not offered to her. The Tribunal can award compensation.
If there is no suitable alternative work and the woman is suspended she will be entitled to remuneration (one week's pay per week) for so long as the Health & Safety rules forbid her coming back. However, she forfeits that right if she unreasonably turns down suitable alternative work.
Medical grounds
An employee who has completed one month's continuous employment and who is suspended from work on certain safety related medical grounds is entitled to remuneration from his employer during the suspension period, up to 26 weeks maximum the relevant grounds concern exposure to ionising radiation, lead and certain other substances which are hazardous to health.
The amount to which the employee will be entitled per week is a week's pay. This is the same as "a week's pay" in unfair dismissal and redundancy cases but with the important difference that there is no maximum "cap".
Wrongful dismissal
Breach of contract" and "wrongful dismissal" typically refers to the same thing. Wrongful dismissal is the name given to a breach of an employment contract by an employer which is connected with the actual dismissal or the constructive dismissal of an employee (for example failure to give an employee the length of notice to which he is entitled under his contract). Of course "breach of contract" has a wider meaning than "wrongful dismissal" as it does not necessarily result in dismissal.
Breach of contract and wrongful dismissal are common law concepts. They have traditionally been and still frequently are dealt with by the ordinary courts of law.
Wrongful dismissal/breach of contract is quite different from "unfair dismissal". Unfair dismissal is a statutory "invention", governed by Acts of Parliament and dealt with by employment tribunals not by the courts. Unfair dismissal can, and frequently does, occur without there being any breach of contract/wrongful dismissal. It is a relatively new concept, having been in existence in Great Britain only since the passing of the Industrial Relations Act 1971.
Frequently "unfair dismissal" will also be "wrongful dismissal" (and vice versa) but not always. The only remedy for unfair dismissal is to present a complaint to an Employment Tribunal.
Cases of wrongful dismissal typically occur when an employer dismisses an employee without giving the notice required by the employee's contract, and without adequate compensation in lieu. In practice it is usually only worth while for the employee to sue if the contract provides a fairly long notice period. This is because damages will be assessed by reference to loss suffered which will normally be limited to the value of lost remuneration and lost "perks" for the period of notice which the employer should have given.
Written reasons for dismissal
The basic rule is that an employee who has been dismissed can require the employer to give him a written statement "giving particulars of the reasons for the employee's dismissal". An employee must be given this written statement without request if dismissed while pregnant or on maternity leave or on adoption leave.
Employees who have completed less than one year's continuous employment by the date of termination do not qualify for this right unless dismissed while pregnant or on maternity leave or adoption leave.
An employee must normally have completed at least one years’ continuous employment with the same employer or an associated employer before the date of termination to have the right to require the employer to provide a written statement.
The basic penalty is a compulsory award of two weeks' pay.
The statutory limit on a week's pay applied for certain purposes is £280 from 1st February 2005.
If by chance you find some error of law or fact in any Net Lawman information page, do please tell us. We should also welcome your suggestions for new subjects for information pages. These notes:
Do not provide a complete or authoritative statement of the law;
Do not constitute legal advice by Net Lawman;
Do not create a contractual relationship;
Do not form part of any other advice, whether paid or free.
