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Thursday, 8 June 2017

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

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