15. Wrongful Dismissal

This chapter examines the legal consequences where an employer lawfully or unlawfully terminates the contract of employment. It considers the competing elective theory of termination and automatic theory of termination, along with statutory intervention in the form of minimum periods of notice set out in section 86 of the Employment Rights Act 1996. Stress is placed on the importance of using the correct terminology in this area of the law and bilateral, unilateral, and non-lateral terminations are defined. Further discussion covers suspension of contract and the conduct of disciplinary hearings. Finally, the remedies available to employees in the case of a wrongful dismissal are addressed, including the circumstances in which a claim for damages is likely to be successful.

16. Wrongful Dismissal

Under the law which existed prior to 1971, an employer was entitled to dismiss an employee for any reason or no reason at all. In 1971 the Industrial Relations Act created the right for many employees not to be unfairly dismissed, and though that Act was repealed, the relevant provisions were substantially re-enacted in the Trade Union and Labour Relations Act 1974, and further changes were made by the Employment Protection Act 1975. The Employment Rights Act 1996 (as amended) contains most of the relevant statutory provisions currently in force. This chapter discusses the ways in which wrongful dismissal may occur; collateral contracts; summary dismissal; and employment law remedies.

21. Statutory Regulation of Dismissals

This chapter considers the termination of employment, and how it is governed by statutory measures—in cases of unfair dismissal—and the common law—in cases of wrongful dismissal. Each of these provisions outline important factors when the contract is to be ended. Being aware of the procedures involved in each of these areas of law will ensure terminations can take effect without unnecessary recourse to court or tribunal action, saving time and money. In dismissing an employee, the law provides for the correct procedure to be adopted, the potentially fair reasons that justify a dismissal, along with automatically unfair reasons to dismiss an employee. Disregarding these may lead to claims for unfair dismissal, the defence of which can be expensive for employers.

20. Ending Employment Contracts at Common Law; and Duties to Redundant and Transferring Staff

This chapter identifies the remedy for the termination of contracts of employment through the common law claim of wrongful dismissal. It addresses situations of redundancy, and the rights of individuals and obligations on employers when the business is transferred to a new owner. Each of these measures offer protection to employees, and employers should understand the nature of these rights, the qualifications necessary for each mechanism, and the remedies available, to ensure they select the most appropriate mechanism to bring the employment relationship to an end. Before the 1960s, contracts of employment were largely dealt with by the ‘normal’ rules of contract law and were often heard by courts that hear contractual disputes. It is important to be aware of the mechanisms that will enable termination of the employment relationship without transgressing the law in order to maintain good working relations.

Defining Wrongful Dismissal: The Alberta Schism

The law in Alberta regarding wrongful dismissal is at odds. The source of this schism is the moment of breach when an employee is dismissed with insufficient notice. The “Mandatory Notice” doctrine holds it is at the moment of termination, while the “Contractual Option” doctrine holds that the breach occurs on failure to provide reasonable notice or pay in lieu of notice. While the Mandatory Notice doctrine is considered trite law in other jurisdictions, Alberta has continued to develop case law supporting the Contractual Option. However, the Contractual Option doctrine suffers from several fatal flaws which highlight illogical theoretical and practical results flowing from its application. Therefore, this trend must reverse and Alberta must return to the Mandatory Notice doctrine.

6. Termination of the employment contract at common law

This chapter looks at termination of employment at common law, and at the breach of employment contract action known as ‘wrongful dismissal’. It first discusses ways in which the contract might untypically end by operation of law rather than the ‘dismissal’ on which many employee rights rest. The chapter then considers the right of either party to terminate most contracts by giving notice—a major feature of UK employment law—and the ability of the employer to dismiss summarily for gross misconduct. It concludes with a detailed analysis of the principal remedy for an employee at common law—the action for wrongful dismissal—which is completely separate and different from statutory unfair dismissal despite an unfortunate tendency for the press to treat them as interchangeable.

13. The Contract of Employment and its Termination

This chapter discusses the contract of employment and its termination. It considers the difference between an employee, an employee shareholder, an independent contractor, and a worker, and the tests used to establish their status. It discusses the types of implied terms contained in a contract of employment. The chapter also considers termination of a contract of employment, examining the difference between unfair, constructive, and wrongful dismissal. It looks at claims for unfair dismissal, considering the potentially fair reasons for dismissal, the band of reasonable responses, the automatically unfair reasons for dismissal, and the remedies available where unfair dismissal has occurred. The chapter concludes with a discussion of redundancy.

8. Employment II: termination—wrongful dismissal, unfair dismissal, and redundancy

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter reviews the law on the termination of the employment contract. Employees have a statutory right not to be unfairly dismissed and the Employment Rights Act (ERA) 1996 identifies the criteria to be satisfied in order for the employee to gain protection. The common law protects against wrongful dismissal and provides tests and guidance for situations involving a breach of an employment contract. The chapter also considers redundancy situations. As this is governed by statute, it is necessary to appreciate the obligations imposed on the employer to adopt fair procedures.