Termination Of Employment

Most common way the contract of employment will come to an end is by an act of the parties, in the circumstances the law will operate to end the relationship automatically on the happening of events/ an event. Al though the terminology may seem strange, if an employer is going to disperse with an employee's services the employee is entitled to be 'fairly dismissed'. Should the contract terminate in this way, there will be no liability on either side. The ways in which the contract will terminate by operation of law are discussed below-;

• redundancy - because the role is redundant;
• under-performance or sickness - if an employee is under-performing, sick absent, or their qualifications are at issue;
• misconduct - the way an employee behaves;
• legal barrier to work - such as if an employee employed as a driver loses his driver's licence and cannot continue to work or a visa runs out where applicable;
• other reasons - a catch-all category of other reasons which can justify the dismissal.

Dismissal with notice -;

the length of notice, which must be given by an employer to an employee, is determined by reference to the following criteria to be applied in the following order:

• Express terms of the contract. If the contract of employment expressly provides for a period of notice, this must be observed unless that period of notice, this must be observed unless that period is less than the statutory minimum to which that particular employee is entitled under s86 of the1996 act (ERA).
• In the absence of an express term it may be impossible to imply a term into the contract, for example, by custom. Such a period may be less than the statutory custom.
• If there is no express or implied term of contract, the courts may rely on a reasonable period. What is "reasonable" depends upon such factors as the status of the employee, salary, length of employment with that employer, age etc. The reasonable period cannot be less than the statutory minimum.
• Statutory minimum. In the absence of any of the above criteria, or where they reproduce a period ;less than the following, the statutory minimum in s 86 of the 1996 act (ERA) must be applied in respect of these employees covered by that section. Section 86 provides that for an employee continuously employed for between one month and two years, the notice period is one week; for an employee employed for more than two years, he/she is entitled to one week for each year of continuous employment subject to a minimum of twelve weeks notice after twelve years of employment. These rights do not apply to a contract for the performance of a specific task, which is not expected to last for more than three months.

Constructive dismissal                                                                                                                            
A constructive dismissal is one where the employee's circumstances become so difficult that they have no option but to leave. This is difficult to prove so a lot of thought must go into a decision to leave in these circumstances.

Summary dismissal                                                                                                                                
Summary dismissal is where an employer dismisses an employee without giving the employer the amount of notice to which that individual is entitled. If there is no justification, such dismissal is wrongful and an action can be brought up against it. The remedy for wrongful dismissal is damages representing the loss of wages during the period of notice that ought to be given. In addition, wrongful dismissal may also be unfair dismissal within the meaning of the 1978 Act. Circumstances are the vital points which mainly determine summary dismissal especially conduct where an employee has a history of misconduct as opposed to a one off incident, therefore this type of dismissal is justified.

Dismissals Procedure;

If the contract states that dismissal is to be according to an established pattern (e.g. three warnings before dismissal occurs) it is a breach of contract if the procedure is not observed. Therefore its deemed breach of contract, so every contract holder should read their contracts carefully and understand what it holds including the small print.

However, it should be noted that the 2002 Employment Act has introduced the obligation on an employer to include a statutory disciplinary and grievance procedure which must be in the contract or written terms and must be followed before any proceedings can take place.

Waiver of Rights can be implemented if an employee's conduct justified a summary dismissal, the right must have been exercised within a reasonable time of the conduct, which allegedly justified the action since delay may amount to waiver of the breach of contract.

Employee Leaving-;                                                                                                                                
An employee is entitled to terminate employment at any time by giving the amount of notice required by the contract. If the employee is deemed to have been entitled to terminate employment by reason of the employer's conduct that may constitute a constructive dismissal and the fact that he gave notice makes no difference.
If an employer's attitude causes an employee to terminate his contract without notice,
 this may well constitute constructive dismissal and the employee may act accordingly.

Termination by Agreement-;

 In a case where parties mutually agree that the contract should come to an end then neither party has ended the agreement and such there will be no dismissal (Employer termination) or Resignation (Employee Termination). Therefore amicable arrangements are put in place to settle the loose ends to see the whole process through.

Frustration occurs when, without fault of either party, the contract becomes either impossible to perform or fundamentally different from what the parties originally intended.

Liquidation of the employer or dissolution of a partnership:-                                                              

At common law the liquidation of a company or dissolution of partnership is clearly a frustration because the contract becomes impossible to perform.

The common law rules are suspended by statute, By Section 139(4) Employment Rights Act 1996 the death or liquidation of an employer or the dissolution of a partnership shall be treated as a dismissal for redundancy, unless the business is taken into new ownership and the employee's contract is renewed.

If there is a transfer of an undertaking and the employee objects to being transferred, his contract terminates and there is no dismissal (Regulation 4(8) Transfer of Undertaking (Protection of Employment) Regulations 2006).

Action for wrongful dismissal;                                                                                                                 

An employee who has been wrongfully dismissed may bring an action for damages against his former employer representing the amount of wages owed to him in respect of work already done and in respect of wages that the employee would have earned had he been given the amount of notice to which he was entitled. The amount of wages lost is determined by the ordinary principles of common law includes  all sums connected with the job, such as loss of tips etc.

Damages for wrongful dismissal cannot normally include compensation for injured feelings or pride or the fact that future earnings may be affected.
The object of damages is to compensate the injured party for what he/she actually lost, not to punish the party in breach of contract, and therefore the courts have developed principles to ensure that the employee who has been wrongfully dismissed receives compensation only for his/her actual loss.

Employment Protection and Family Life

1963 realised a Contracts of Employment Act which introduced minimum notice periods and the right to written particulars, and since then various pieces of legislation have given employment protection rights which are enforced through the tribunals rather than the ordinary courts e.g. right not to be unfairly dismissed and the right to redundancy payments. However there are a variety of disputable individual rights which were created by the Employment Protection Act 1975 and the Employment Relations Act 1999 both found in the Employment Relations Act 1996 (ERA)

Further studies show that to reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity leave and to parental leave following the birth or adoption of a child. Regulation 19 provides that an employee is entitled under s47C ERA 1996 not to be subjected to any retirement as a result of taking parental leave.

The first strand relates to pregnancy, birth and maternity while the second strand concerns attempts at reconciling work and family life. Work policies on career breaks, parental leave and part-time work, as well as flexible working arrangements which serve the interests of employee and employer are of vital importance to both women and men.

Implementation of various Directives and Social partner agreements in this area should be accelerated and monitored regularly. There must be an adequate provision of good quality care for children and other dependents in order to support women's and men's entry and continue participate in the labour market. An equal sharing of family responsibilities is very crucial in this respect. In order to strengthen equal opportunities the Member states and the Social Partners have to design, implement and promote family-friendly policies, including affordable, accessible and high quality care services for children and other dependants, as well as parental and other leave schemes without violating any rights/legislation.

Employer's Responsibility and Best Practise -;

• to consider requests properly in accordance with the set procedure.
• to ensure they adhere to the time limits contained within the procedure.
• to provide the employee with appropriate support information during and after the application process.
• the only decline a request where there is a recognised business ground and to explain to the employee in writing why it applies.
• to ensure that any variation with the procedure is agreed in advance with the employee and recorded in writing.

Discrimination

Discrimination is the prejudicial or distinguishing treatment of an individual based on his or her membership - or perceived membership - in a certain group or category. It involves the group's initial reaction or interaction, influencing the individual's actual behavior towards the group or the group leader, restricting members of one group from opportunities or privileges that are available to another group, leading to the exclusion of the individual or entities based on logical or irrational decision making. One of the major headline in the Employment Tribunals in and around Europe.

The concept of discrimination in the common law principles of freedom of contract applies equally to employment contracts and, as such, at common law the employer can employ, or refuse to employ, anyone whatever the case/reason he/she wishes, including reasons based on the sex or race of that person.  This concept has raised a lot of questions in both the public and private sectors, however mainly the private sectors since they have bespoke hierachies that include recommended/proven(with a reputable track record) personnel.

These propositions nowadays, however would offend most people's sense of fairness and over the past 30-odd years the law has sought to intervene to restrict an employer from exercising his common law rights. Even when the law has changed over the years, these measures are still in place prevaricatedly because the law can only go to as where you can prove that these disciminations have actually been used against anyone.

The original moving force to bring in legislation in this area came from international law. The Universal Declaration of Human Rights 1948 states that everyone is entitled to all rights and freedoms 'without distinction of any kind, such as race, colour, sex, language, religion, political or other opinions of national or social origin, property, birth or status'. Such statements are reiterated by the International Labour Organisations Conventions 1958 and 1980(ILOC). However, without a single shred of doubt, the most important influence on national law has been the UK membership of the European Community which overrides a lot of its legislation to accommodate the European Community.

Contract Terms

As probably the most important document of your working life, it is essential that you know at least the basics about your contract of employment and what it means. A contract sets out the terms and conditions upon which you are employed, listing the majority of obligations and rights of both the employee and employer. These terms are often negotiable but, once agreed and accepted, the contract is legally binding on parties.

The employment relationship is a contractual standing and must have all the basic elements of an enforceable contract to make it legally binding. In strict contractual terms, the offer is made by the employer and formerly or informally accepted by both parties’ employee and employer.

The acceptance maybe merely verbal or writing, or conversely the employee may signify his acceptance by merely turning up for work on the accepted day. In some cases , such as if an agreement is based on a verbal exchange, the very act of starting work signals that you accept the terms and conditions offered, and a contract is effectively entered into. It is advisable to read Employment Rights Act (ERA) to further understand the importance and rights of your working contract.

The consideration within the contract is the promise to pay wages on the part of the employer, and the promise to provide the services on the part of the employee. Once the acceptance has taken place there is a legally binding agreement and action will lie against the party who breaches that agreement, even though it may only just have come into existence/effect. (Parties intended within the contract).

Employment Relationship

Employers have the obligation to notify their employees of the essential aspects of the contract or employment relationship. Contracts will be used to refer both to both contracts and employment relationships. The following must always be highlighted in the employment relationship-;

• the identity of the parties involved
• the place of work or, if there is no fixed or main place of work, a statement to that effect and details of the registered place of business or, where appropriate ,  the domicile of the employer;
• the title , grade, nature or category of work, and brief description of the work;
• the date of commencement of the contract and,
• in the case of temporary contract, its duration;
• the amount of paid leave;
• the length of the notice periods(statutory in most cases);
• the initial basic amount, the other component elements, and the frequency of payment of the employee's remuneration;
• the length of the employee's normal working day or working week;

• where necessary the collective agreements governing the employee's conditions of work.

Employment Law and the relationships are entirely governed by the statutes and legislation therefore everything must be signed and dated for future references. We will refer more about the contracts in the next headline.

Distinction between employees and independent contractors may seem straight forward but this distinction may not be so obvious, however if the word ‘worker’ is used instead of ‘employee’. The impute of people to use the words interchangeably but for individuals in the Employment Law sector the definition of employee is of vital important and must be distinguished from that of a self-employed person or an independent contractor.

“An employee works under a contract of service whereas an independent contractor works under a contract for services”.  The phrase contract of employment describes employee’s status, as opposed to that of being self-employed, or any other type of worker. The distinction is important, as only employees are entitled to certain protection and rights – such as maternity rights and compensation in the event of an unfair dismissal.

The main differences are determined by the following factors:-

                      i.        Insurance and Welfare Benefits-: employees are entitled to job seekers allowance, statutory sick pay and state retirement pension as long as they have paid class 1 National Insurance contributions. 
Such contributions are assessed on the employee's earnings and should be deducted at source by the employer.
In addition the employer also makes a contribution to help with the taxes and retain a lucrative working environment.
In contrast independent contractors are responsible for their own contributions and pay a lower-rate class 2 payments.
These payments only give limited rights to certain welfare benefits and do not entitle the contributor to jobseekers' allowance or statutory sick pay, which basically clarifies the independent part.

              

Employment Law

The topic we are discussing today has gained momentum through our regular blog visitors who wanted to fully understand what "Employment Law", really is and attain credible yet factual understanding of the fundamentals surrounding this topic. Which starts with the employee and employer within any given organisation.

Employment Law is a comprehensive subject and is amalgamated by so many schools of thought, hence every piece of data given in this chapter will be cross referenced as we continue to reveal this orthodox of our day to day life. To the readers of our blog I urge you to further research and feel free to scrutinise any details given that you might have knowledge or deep understanding of to enrich this post.

The legislation surrounding Employment Law might prove equivocal its is clear that common law among statutes there are also additional sources such as codes of practise to common law and that where we are going to develop our understanding to this undergeneralised topic. Over the years there are a lot of changes that have been made due to the grey areas of employment law that has led to a serious number of tribunal court cases.

Employment Appeal Tribunal (EAT)

Commissions

There are a variety of functions which include overseeing legislation and helping applicants with clarifications where possible.

Law is changing with the changing employee and employer attitudes; therefore this constant change is ultimately changing this very important relationship. Therefore you cannot rely on one source of information as far as employment law is concerned but accumulate data as much as possible by visiting all the relevant institutions of employment law to have fully comprehensive, reliable and unequivocal information.

Common Law

CL contains a great many statutory provisions, a large number of statutes are recent in that they came onto statute books in the past 40+years, before then there was a few legislation governing employment relationship and ever changing with statutes reflecting on this matter.

Legislation

Primary sources of employment rules, statutes added there is a wealth of delegated legislation. Statutory instruments may amend existing statutory provision e.g. United Kingdom Legislation amended to comply with European directives and very good examples are Equal Pay Amendment 1983 and Transfer (Undertaking the Protection) for Employment.


European Law - the UK joined the European Communities Act in 1972, England and Wales; Scotland; Northern Ireland. The treaty meant that the act had legal effect in the UK without further enactment, directly and will override national law e.g. EQUAL PAY 1970 is an Act of the United Kingdom Parliament which prohibits any less favourable treatment between men and women in terms of pay and conditions of employment.

European Convention on Human Rights 1950 (ECHR) and Human Rights Act 1998 (HRA)

•