A number of Distinct Claims Arising from Termination of Employment
A number of distinct claims may arise from the termination of an individual from employment under UK law. A number of claims could result from the termination of an employment contract. These allegations include unjust and unfair dismissal charges.
Claim of Unfair Termination
The type of claim
The nature of a mistaken dismissal claim is when the employee is in a position to assert a claim of contract breach. This scenario sometimes occurs when a company decides to terminate an employee's contract without following the required appropriate procedure. An employer should give notice to their employee as specified in the employment contract or make a payment lieu of notice before terminating the contract. On the other hand, an employee may claim wrongful dismissal in a case where they are employed under a fixed contract which the employer decides to terminate before its expiry date. Wrongful dismissal claim could be presented in law courts either the High Court or the County Court. The employment tribunal also handles wrongful dismissal claims. The Employment Tribunal can, however, make compensations not exceeding £25,000 in case of a breach of contract (Coley, 2009).
Defenses
In a wrongful dismissal claim, the only defenses available to the employer include the employer who was wrongfully dismissed and the proper notice that the employer was required to follow. A contract clearly outlines the circumstances under which an employer could terminate the contract without giving any notice. If such a statement is not in the contract, the employer will, therefore, need to prove that the employee's behavior was against the contract hence a breach of their obligations as per the contract.
Compensation
An employee is eligible for compensation if their wrongful dismissal claim is successful. The compensation that an employee is eligible for is equivalent to their total net worth of the salary and the total benefits that they were to receive if they had been given proper notice before contract termination. Nevertheless, the employee will still be protected by the common law duty to mitigate their loss. Therefore, an employee should make all the necessary effort to make sure that they look for an alternative form of employment.
Unfair Dismissal
Entitlement to claim
Unfair dismissal claims are only viable for those employees that have more than one year of continuous employment with an associated employer. Before the introduction of Age Discrimination Legislation, all employees were required to be within the normal retirement age at the date of their dismissal. The normal retirement age for the employees was assumed from the perspective of the group of employees having similar positions as those employees at the date of dismissal. In general, the normal retirement age was considered to be 65 years. There were also chances that an employee with less than one year of service with an associated employer could still present an unfair dismissal claim. In such an occasion, the dismissal claim is required to be connected to the employee's trade union membership, safety reasons, health status, or pregnancy (Kilpatrick, 2008).
Constructive Dismissal
Unfair dismissal claim can only be raised by those employees that have been dismissed. However, in a case where an employee resigns as a retaliation to a breach of contract of employment by the employer, they are still considered as dismissed. Such a condition is referred to as constructive dismissal (Vettori, 2011; Harcourt, et al., 2013). For an employee to establish constructive criticism they are required to show prove that their employer has been involved in a breach of contract, through which they responded by reassigning. Some of the common examples of constructive dismissal involve situations where the employer individually reduces an employee's compensation package (Rieger, 2013).
Remedies
The success of an unfair dismissal claim warrants the Tribunal to consider the option of remedies. The tribunal could direct the employer to give back the employee their original job position or another similar position. In case such a directive is issued to the employer, they will be required to pay the employee the lost remunerations amid the date when the command was issued and the date of the employee's dismissal.
Possibly Fair Reasons for Dismissal
For an employer to defend a claim presented by their employee on the grounds of unfair dismissal, they will need to show that they followed a fair procedure as well as the reasons for the dismissal were fair (Collins, 2011). Poor performance and misconduct of employee are some of the reasons for dismissal that the legislation considers as fair reasons for a dismissal by the employer.
Summary
The main reason that motivated the introduction of the unfair dismissal claim was due to the inefficiency nature of the wrongful dismissal claim to remedy a dismissal claim that was as a result of procedurally discriminating mode. The British Home Stores in association with ACAS Code of Practice have a well-outlined practice that should be adhered to when establishing a fair dismissal claim. In situations where there are cases of uncivilized misconduct and there is no need to notify the employee if they are left out, the code entitles the employee to the right to file an appeal (Pitt, 2008).
In the past, unfair dismissal and wrongful dismissal claims were heard separately due to the different causes (Southey, 2010). Unfair dismissal claims were usually conducted in the employment tribunals while wrongful dismissal claims were taken into account by the High Courts or County Courts depending on the amount being claimed (Gibbons, 2007).
There are some situations where a claim presented by an employee could have both wrongful dismissal and unfair dismissal claims elements. An employee could present both types of claims and have a chance of winning the two claims or just one (Taylor, & Emir, 2015). However, if an employee presents a double claim, they cannot be compensated twice for a similar loss. A court may also make a decision to stay if both claims are presented together while reaching the outcome of another. In such a situation, the applicant is required to make a decision on what claim they are willing to pursue (Hart et al., 2012).
References
Collins, H., 2012. Compensation for dismissal: In search of principle. Industrial Law Journal, 41(2), pp.208-227.
Coley, T.J., 2009. Contracts, Custom, and the Common Law: Towards a Renewed Prominence for Contract Law in American Wrongful Discharge Jurisprudence. BYU J. Pub. L., 24, p.193.
Gibbons, M. (2007). A review of employment dispute resolution in Great Britain. London: DTI.
Harcourt, M., Hannay, M. and Lam, H., 2013. Distributive justice, employment-at-will and just-cause dismissal. Journal of Business Ethics, pp.1-15.
Hart, H.L.A. and Green, L., 2012. The concept of law. Oxford University Press.
Kilpatrick, C., 2008. The new UK retirement regime, employment law and pensions. Industrial Law Journal, 37(1), pp.1-24.
Pitt, G., 2008. Cases and Materials on Employment Law. Pearson Education.
Rieger, M.H.A., 2013. Fairness of termination of employment due to old age (Doctoral dissertation).
Southey, K. (2010). A typology of employee explanations of misbehaviour: An analysis of unfair dismissal cases. Journal of Industrial Relations, 52(1), 81-102.
Taylor, S. and Emir, A., 2015. Employment law: an introduction. Oxford University Press, USA.
Vettori, S., 2011. Constructive dismissal and repudiation of contract: What must be proved?. Stellenbosch Law Review= Stellenbosch Regstydskrif, 22(1), pp.173-187.
