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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]:

02/03/2020: Employment Tribunal award limits increased

Section 34(2) Employment Relations Act 1999 requires that the limits applying to certain awards of employment tribunals, and other sums payable under employment legislation be adjusted by reference to change the retail prices index.

The Employment Rights (Increase of Limits) Order 2020 (SI 2020 No. 205) increases, from 6th April 2020, the awards as specified in the Schedule which include among others:

* Maximum amount of “a week’s pay” for the purpose of calculating a redundancy payment or for various awards including the basic or additional award of compensation for unfair dismissal: from £525 to £538

* Limit on amount of compensatory award for unfair dismissal: from £86,444 to £88,519

 

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

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.

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.

ACAS has published the Code of Practice on Settlement Agreements.

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

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, the EAT had ruled that the employee's choice of a companion to accompany him at a grievance hearing need not be "reasonable". 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.

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’


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

[Page updated: 05/03/2020]

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