Introduction to Business Law: Employment Law

Employment Tribunals

•       The most well known of the Tribunal is perhaps the Employment Tribunal

•       Along with Social Security Tribunals it is the one that will most likely affect most people

•       This type of tribunal has over the last decade evolved from informal to formal and now much resembles the court

•       This type of hearing was originally known as the Industrial Tribunal and was brought into effect by the Industrial Training Act 1964

•       The Employment Tribunal is now governed by the Employment Tribunals Act 1996

•       The jurisdiction of the ET has gradually increased to deal with many types of dispute between employers and employees

•       The first industrial tribunals were concerned with unfair dismissals

•       The remit has now expanded greatly due in large part to the effects of the Employment Rights Act 1996

•       Tribunals now deal with unfair dismissal, redundancies and complaints of sexual and racial discrimination and whistle blower complaints

Dismissal

•       There are three types of dismissal

•       The contract of employment is terminated with or without notice

•       A Limited term contract expires without being renewed

•       The contract is terminated by reason of the employees conduct (disciplinary)

Legitimate Reasons for Dismissal

•       Redundancy (post no longer in existence or need to reduce workforce)

•       The conduct of the employee (discipline)

•       Retirement (Soon the be significantly varied)

•       Contravention of duty or statute

•       Capability or qualifications

•       Some other substantial reason

Some Other Substantial Reason

•       Protection of business interests.

•       Difficult personalities and unfortunate manner; Perkin v St Georges Healthcare NHS Trust (2005)

•       Following corporate takeover; Cobley v Forward Technology Industries PLC (200)

Capability

•       The ability to be able to carry out their duties is a contractual requirement for employees

•       This can be affected by:

•       Illness

•       Failure to maintain qualifications

•       Poor performance

•       Incompetance

Misconduct

•       Breaches of discipline fall into two categories

•       Misconduct

•       Gross Misconduct

Reasonable Responses

•       Where an employee has breached disciplinary rules the employers response must be reasonable

•       What is reasonable?

•       British Home Stores v Burchell [1978] IRLR 379

British Home Stores v Burchell [1978] IRLR 379

•       Three part test for fair dismissal:

•       The employer must demonstrate that it believed that the employee was guilty of the relevant conduct at the time it took the decision to dismiss

•       The employer must demonstrate that it had in mind reasonable grounds upon which to sustain that belief

•       The employer at the stage at which it formed that belief on those grounds and at any rate at the final stage at which it formed that belief must have carried out an investigation into the matter that was reasonable in all the circumstances of the case

Unfair Dismissal

•       Where an employee has been dismissed the burden of proving the reason for the dismissal is on the employer; Employment Rights Act 1996 s.98(1)

•       The employer must have acted reasonably and must display sufficient reason for dismissing the employee

•       Certain reasons for dismissal are treated as automatically unfair

•       Trade Union membership or non membership

•       Pregnancy

•       Exercising rights under the Working Time Regulations

•       Asserting a statutory right