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.