Employment Law- Termination

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  • Termination of employment
    • Difficulties with actual dismissal
      • Morton v Sundour Fabrics Ltd v Shaw
      • S.95(2)
        • If employer gives a fixed date and employee leaves early= dismissal by employer
      • Stern v Simpson
        • Ambiguous language in the heat of the moment is not a dismissal
      • Martin v Yeoman Aggregates Ltd
        • Must retract words of dismissal promptly
    • Lawful termination (4 ways)
      • PILON
        • Express term permits it
        • Benefit of a PILON where there are restrictive covenants- WD can make them unenforceable
        • Action for debt
          • No duty to mitigate loss
            • If employee has right to PILON
              • Abrahams v Performing Right Society
        • Action for damages
          • With duty to mitigate loss
      • Gross misconduct
        • No evidence of breach at the time
          • Boston Deep Sea Fishing
        • Repudiated the contract
      • Lawful notice given
        • S.86(1)
          • Min. notice period if employed for one month or more
            • One weeks notice if employed for less than two continuous years
            • One week's notice for each year of continuous employment where employment is two years or more but > 12 years
            • 12 weeks notice period if employed for 12 years or more
        • No contractual right to be dismissed fairly
          • Fosca Services Ltd v Birkett
        • Gunton v Richmond on Thames
          • An injunction may be granted to stay a dismissal until a disciplinary procedure is followed if compliance with procedure is a contractual right
      • A termination without notice clause in the contract applies
        • A dismissal without notice
          • Summary Dismissal
            • Only lawful if...
              • Expressly provided for in contract
              • Gross misconduct/gross negligence
                • Laws v London Chronicle
    • Constructive Dismissal
      • Where the employer commits a repudiatory breach of the contract of employment and the employee accepts this breach by resigning
      • Weathersfield v Sargent
      • Waltons & Morse v Dorrington
        • There is a need to act quick or at least work under protest.
    • REMEDY
      • ET- 3 month time limit
      • Civil Court- 6 year time limit
      • Damages
        • Calculation of damages
          • Section 88
            • Establishes that the compensation must be for 'normal working hours'

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