Termination of Employment (Common Law)

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  • Created by: Edward
  • Created on: 14-03-17 23:19
ERA 1996, s 86(a)
Notice period: employed for between one month and less than 2 years = 1 weeks’ notice
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ERA 1996, s 86(b)
Notice period: employed for between two years and 12 years = one week for each year of employment
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ERA 1996, s 86(c)
Notice period: employed for over 12 years = 12 weeks’ notice
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ERA 1996, s 86(3)
Payment in lieu can be made instead of notice and such payment terminates the contract immediately
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R(Shoesmith) v OFSTED (2011)
Employer acted unlawfully in its decision to dismiss and quashing orger was granted (despite fair dismissal)
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Powell v Brent LBC (1988)
No inj’n would be granted That required an employer to let a worker continue in his job when the employer had sought to terminate that emp’t or to prevent the worker carrying out his work unless there was clear evidence that it was just to make sure
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Irani v Southampton & South West Hampshire HA (1985)
Court granted injunction preventing a dismissal in order to allow time for a disciplinary procedure to take place, in circums where it was held that mutrual trust and confidence still existed between the parties
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Rigby v Ferodo (1988)
When management implemented wage reduction without R’s agreement and againsty his will, his contract of emp’t with the terminated (wrongfully terminated) and could no longer be claimed to be subsisting (thus no acceptance)
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Denco v Johnson (1991)
summary dismissal justified where there is gross misconduct – although employer should make seriousness of conduct known to employees before
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London Transport Executive v Clarke (1981)
There is no room for concept of ‘constructive resign’ where employer is entitled to terminate due to employee’s fund’l breach
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East Sussex CC v Walker (1972)
Where employee faced with choice to resign or be dismissed and chooses to resign as it may make trying to find another job easier) then this will usually constitute in fact a dismissal
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Pepper v Webb (1969)
What will justify instant dismissal; something done by employee which imliedly or expressly is a repudiation of the fund’l terms of the contract
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Sinclair v Neighbour (1967)
CA: theft from employer will constitute gross misconduct and thus justify summary dismissal
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Dietman v Brent LBC (1988)
Where a disciplinary procedure is set out in contract, a failure to implement it may in itself be a breach of contract
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ERA 1996, s 86(6)
Employer (both parties) have right to treat contract as terminatd w/out notice by reason of other parties’ conduct (i.e. summary dismissal and constructive dismissal)
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Western Excavating v Sharp (1978)
Conduct must be suff’y serious to entitle him to leave at once and loses right if he does not leave immediately or suff’y soon
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Hellyer Bros v Atkinson (1994)
A mutually agreed termination does not amount to a dismissal at law-employee merely accepting fact of his dismissal rather than agreeing to terminate his emp’t
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United Bank v Akhtar (1989)
Employee was constructively dismissed where empoyer exercised mobility clause, giving employee very short notice (i.e. no reasonable notice) and offered no financial assistance with the move
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Bliss v South East Thames RHA (1987)
Constructively dismissed where employer asked employee to undergo psy exam – breach of mutual trust and confidence
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Igbo v Johnson Matthey Chemicals (1986)
CA: the automatic termination agreement was invalid as contrary to ERA 1996, s 203(1)
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FC Shepherd v Jerom (1986)
It is imposition of prison sentence which is the frustrating event, not the commission of the offence
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Notcutt v Universal Equipment (1986)
Employee injured – would not be able to work again – frustrated contract the contract here was a periodic contract of emp’t determinable by short, or very short, notice periods (1 week)
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Williams v Watson Luxury Coaches (1990)
Courts unwilling to find frustration in contracts of emp’t – would be rare occurrence and should be severely limited
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Egg Stores v Liebovichi (1977)
Factors to consider re frustration: length of prev emp’t;nature of job;nature and effect of disabling event;employer’s need for replacement;risk to employer re redundancy/UD payments or claim;whetehr reasonable in all circums for employer to wait any
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Hopkins v Norcros (1994)
A pension which starts immediately on wrongful dismissal should not be set off against, or deducted from, damages due to the employee
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Horkulak v Cantor Fitzgerald Int’l (2004)
Employer could not be awarded damages for this as the bonus was discretionary and not a contractual entitlement
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Edwards v Chesterfield Royal Hospital NHS Foundation Trust (2012)
SC: damages not available when alleged breach was failure to follow terms of contractual disciplinary procedure – the disciplinary procedure was inextricably linked with dismissal and so fell inside ‘Johnson exclusion area’
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Addis v Gramophone (1909)
Damages could not be claimed for injured feelings, loss of reputation or fact that dismissal was likely to make it more difficult for employee t find another job – now subj to Malik qualification
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Malik v BCCI (1997)
Staigma damages allowed – not on basis they suffered loss arising from circums of dismissal, b ut because employers breached implied oblign to maintain mutual trust and confidence
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Johnson v Unisys (2001)
Limited Malik principle – damages not available for breach of implied term consisting of manner of dismissal because term did not survive the termination of the contract and also because ot would be wrong to circumvent the statutory protection fr UD
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Eastwood;McCabe (2004)
‘Johnson exclusion area’ applies to dismissal itself – issue = not whether employee is dismissed or not, but whether breach of implied term of trust and conf relied upon is based on things happening before actual dismissal
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Other cards in this set

Card 2

Front

Notice period: employed for between two years and 12 years = one week for each year of employment

Back

ERA 1996, s 86(b)

Card 3

Front

Notice period: employed for over 12 years = 12 weeks’ notice

Back

Preview of the back of card 3

Card 4

Front

Payment in lieu can be made instead of notice and such payment terminates the contract immediately

Back

Preview of the back of card 4

Card 5

Front

Employer acted unlawfully in its decision to dismiss and quashing orger was granted (despite fair dismissal)

Back

Preview of the back of card 5
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