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Employment

Termination of employment, wrongul and unfair dismissal, disciplinary action

Contents:

Introduction
Dismissing staff
Making staff redundant

Business transfers and TUPE

Handling staff resignations

Handling an employee's grievance

Being taken to an employment tribunal by an employee

Taking disciplinary action against an employee

Solve a workplace dispute

Whistleblowing

Introduction

The law relatiing to termination of employment and disciplinary action is to be found both in contract law and in specific and complicated legislation (much of it derived from EU law) regarding employment. Thus the legal relationship between employer and employee must always be considered first in the light of the terms of the employment contract, and second having regard to employment legislation.

This applies in particular to termination of the contract of employment. The termination of employent by the employer in breach of the contract is generally referred to as 'wrongful dismissal'. A terrmination of employment in breach of employment protection legislation is referred to as 'unfair dismissal'.

The following topics are links to futher information contained in the GOV.UK website. In order to supplement this information, we also provide links to 'What's new' items where they are relevant to the topic.

Dismissing staff


How to dismiss staff fairly, working within dismissal rules and dealing with dismissals relating to whistleblowing.

What’s new items on all the above topic [see What's new page or archive for full item or follow link in title]:

01/08/2014: Employee on 12 month notice barred from taking up job with competitor
Elsevier Ltd v Munro

The Judge granted an injunction to enforce the prohibition on working for a competitor, in the form of Cengage, until the end of the contractual notice period on 10 April 2015.

27/04/2014: High Court refuses to grant injunction for ‘War Horse’ musicians
http://www.bailii.org/ew/cases/EWHC/QB/2014/1176.html

Ashworth and Others v The Royal National Theatre

Comment: this case is an example of the court refusing to order an employer to continue to employ workers who were dismissed arguably in breach of contract. The judge considered the workers' prospects at the rial of their case for breach of contract by the National Theatre were strong. However, he was not persuaded of the case to order interim relief pending trial, to reinstate a live band in the production of War Horse and to engage each of them as part of it.

17/04/2014: Pharmacy whistleblower unfairly dismissed

Gahir v Blackbay Ventures Ltd T/A Chemistree
UKEAT/0449/12/JOJ  Hearing Date: 27 March 2014

‘Chemistree’ was a chain of pharmacies which had employed Ms Gahir as a part-time assistant in the role of Responsible Pharmacist. Her responsibilities had included the monitoring and securing of compliance with statutory requirements and guidance laid upon the employer. The employee had questioned the employer's practices and procedure. She had sent several emails to, inter alia, the clinical pharmacist manager, the human resources manager and a director, raising 17 health and safety concerns and concerns about failures to comply with legal obligations. The employer had responded immediately and agreed to put in hand any necessary changes to its procedures.

13/11/2013: Court of Appeal restores Tribunal decision on Crystal Palace FC workers
http://www.bailii.org/ew/cases/EWCA/Civ/2013/1410.html
Kavanagh and others v Crystal Palace FC (2000) Ltd and another
[2013] EWCA Civ 1410 Hearing Date: 13/11/2013
The administrator of the owner of Crystal Palace Football Club dismissed certain employees before a possible sale of the Club was certain. The administrator later sold the Club as a going concern. Before the sale, some of the employees commenced proceedings in the employment tribunal, claiming their dismissals were unfair by virtue of regulation 7 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

Comment: this case is about whether the dismissal of employees was "an economic, technical or organisational reason entailing changes in the workforce" (ETO) was would mean that the dismissals were not automatically unfair under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

 

06/08/2013: Unfair Dismissal (Variation of the Limit of Compensatory Award) Order 2013
The Unfair Dismissal (Variation of the Limit of Compensatory Award) Order 2013
2013 No. 1949 came into force on 29th July 2013 and was made under the powers conferred by section 15 of the Enterprise and Regulatory Reform Act 2013.This Order amends the limit on the compensatory award for unfair dismissal claims by introducing an additional, alternative limit. In an unfair dismissal claim the limit on the compensatory award shall be the lower of a set amount (which is currently £74,200) and the product of 52 multiplied by a week’s pay of the employee concerned.

 

16/11/2012: ‘An equality too far’ housing trust manager wins wrongful dismissal case
Mr Adrian Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch)
http://www.bailii.org/ew/cases/EWHC/Ch/2012/3221.html
Mr Smith was a practising Christian and occasional lay preacher. He was demoted to a more junior post with a lower salary by his housing trust employer for having posted on his Facebook page a comment headed ‘an equality too far’ on the news that Gay marriages in church were to be given the go-ahead, which the employer claimed was in breach of its disciplinary code

16/11/2012: Train conductor dismissed for alleged dishonesty loses appeal
Turner v East Midlands Trains Ltd 2012] EWCA Civ 1470
http://www.bailii.org/ew/cases/EWCA/Civ/2012/1470.html
A senior train conductor who had continuously worked for the respondent or its predecessors for more than 12 years was dismissed. At the time of her dismissal she had a clean disciplinary record. She would issue tickets using a computerised ticket machine. Sometimes the machine would produce what was termed a "non-issued" ticket (ANI). The train company dismissed the conductor due to its belief that she had inappropriately and over a period of time deliberately manipulated the ticket machine so as to produce automatic ANIs of the second kind of sufficient quality to give the appearance of being genuine tickets and had then fraudulently sold them to members of the public and dishonestly kept the proceeds.

Making staff redundant


Rules employers must follow when making staff redundant - consultations, notice periods, compulsory and non-compulsory redundancy and redundancy pay

Calculate your employee's statutory redundancy pay


Employer calculator - calculate your employee's statutory redundancy payment

What’s new items on this topic: see below]:

05/11/2013: Guidance: Handling small-scale redundancies
ACAS has published guidance to assist employers in dealing with small scale-redundancies. The guidance aims to support small and medium sized enterprises intending to make fewer than 20 people redundant.

Business transfers and TUPE

When a business changes owner, its employees may be protected under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

When TUPE applies, the employees’ employment contracts usually transfer over to the new owner of the business, subject to certain exceptions if employees are made redundant or if the business is insolvent. The new owner will be bound by the employees' terms and conditions of employment and continuity of employment is maintained.

What’s new items [go to What’s new? page or archive for more details]:

02/12/2014: Transferee employer vicariously liable for harassment caused by other employee

Vernon v Azure Support Services Ltd and others
UKEAT/0192/13/SM

Mrs Vernon, the claimant, was employed by Port Vale Football Club, the second Respondent (R2), as a conference and events sales manager. Her employment was transferred on 1 July 2011 by virtue of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (as amended (TUPE) to Azure Support Services (R1), where she was employed until her dismissal on 19 October 2011.

Handling staff resignations


How employers must handle written and verbal staff resignations, business transfers and redundancy pay

Handling an employee's grievance


Handling employees' grievances at work - setting up a grievance procedure, holding a grievance hearing and managing appeals

Being taken to an employment tribunal by an employee


What happens if you're taken to an employment tribunal by an employee - the process, your responsibilities, and the possible outcomes.

Information about Employment Tribunal procedure rules from:HM Courts and Tribunals Service and Department for Business, Innovation & Skills may be found on the GOV.UK page on The Employment Tribunals Rules of Procedure 2013 (as amended). These are the dtailed rules on how cases are handled in employment tribunals, from starting a claim to what happens at a hearing.

Taking disciplinary action against an employee


Disciplinary rules and procedures to deal with poor performance and conduct responsibilities, and the possible outcomes

Update:

11/03/2015: Acas has made some small changes to the Acas Code of Practice on Discipline and Grievance. The revised Code came into force on 11 March 2015 and is available to download from this page or view online. The revisions were made following a judgement by the Employment Appeal Tribunal (EAT) which clarified the rules on making requests to be accompanied at grievance or disciplinary hearings.

Solve a workplace dispute


Grievances and disciplinary action at work can be solved by informal discussions, formal procedures, mediation, conciliation or arbitration. The Advisory and Conciliation Service (ACAS) may act to assist in the resolution of  a dispute. Where a claim has been initiated before an employment tribunal, the case may be settled under the auspices of ACAS by agreement on form "COT3" which produces a binding agreement.

Alternatively, a legally binding agreement may be enteted into in order to resolve a dispute, known as a "settlement agreement" (formerly a "compromise agreement"). In order to be legally binding on the empoyee as regards employment rights, a qualified lawyer holding indemnity insurance must give a written certificate in the prescribed form that he or she has advised the employee.

Legaleze comment: The COT3 procedure has been criticised for using very brief forms of settlement which may not be effective to settle all legal claims the employee may have, e.g. under the Equality Act. It is better to seek specific legal advice in such a situation.

What’s new items on all the above topic [see What's new page or archive for full item or follow link in title]:

03/02/2014: Employee’s right to choose representative at disciplinary hearing
http://www.bailii.org/uk/cases/UKEAT/2013/0177_13_1410.html
Roberts v GB Oils Ltd
UKEAT/0177/13/DM  Hearing Date: 16 December 2013

In this case, the employer had refused to allow the employee his choice of representative at a disciplinary hearing, because the employer was in a dispute with that person. The dismissal of the employee was upheld at the disciplinary hearing. The employee brought a claim in the Employment Tribunal for breach of his right to choose a representative at the disciplinary hearing. The Tribunal dismissed the claim.
The employee appealed to the Employment Appeal Tribunal (EAT). In the case of Toal & Hughes v GB Oils Ltd http://www.bailii.org/uk/cases/UKEAT/2013/0569_12_2205.html
The EAT in the present case ruled that it must follow the decision in the earlier case, even though the ACAS Code suggested a different interpretation of the law. However, it was for the Employment Tribunal to determine whether any compensation for breach of the right to choose a representative was appropriate. The EAT therefore allowed the appeal and remitted the case to the Employment Tribunal for compensation to be assessed.

09/07/2013: New employment dispute settlement procedures to come into effect
The Enterprise and Regulatory Reform Act 2013 (Commencement No 2) Order 2013 SI  2013/1648 brings into effect the following reforms of employment law contained in the Enterprise and Regulatory Reform Act 2013:
(i)The prohibition on negotiations on terminating employment contracts being entered as evidence is brought into effect from 29 July 2013. Evidence of pre-termination negotiations is inadmissible in any proceedings on a complaint under the Employment Rights Act 1996, s 111. This includes any offer or discussions prior to the termination of the employment in question, with a view to it ending on terms agreed between employer and employee. The rule, as brought into force, does not apply in certain circumstances.
The Employment Code of Practice (Settlement Agreements) Order 2013 SI 2013/1665 comes into effect on 29 July 2013 and is made under the Trade Union and Labour Relations (Consolidation) Act 1992 s.200. This order brings into effect the new Code of Practice on Settlement Agreements.

 

Whistleblowing

Whistleblowing is when a worker reports suspected wrongdoing at work - find out about the whistleblowing process, who's involved and what protection workers have from dismissal

What’s new items on all the above topic [see What's new page or archive for full item or follow link in title]:

 

01/08/2014: Public Accounts Committee publishes report into Whistleblowing

The House of Commons Public Accounts Committee stated that a positive approach to whistleblowing should exist wherever the taxpayer’s pound is spent, by private and voluntary sector providers as well as public bodies.  However, far too often whistleblowers have been shockingly treated, and departments have sometimes failed to protect some whistleblowers from being victimised. The Committee has heard of too many cases of appalling treatment of whistleblowers by their colleagues, but departments were unable to tell the Committee if those who had threatened or victimised whistleblowers had been sanctioned.

21/05/2014:Supreme Court rules that LLP member is a ‘worker’
http://www.bailii.org/uk/cases/UKSC/2014/32.htm

Clyde & Co LLP and another (Respondents) v Bates van Winkelhof (Appellant)

[Page updated: 28/05/2015]

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