Unfair Dismissal

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t is important to distinguish unfair dismissal from the common law remedy for wrongful dismissal. The latter is a civil law remedy essentially based upon breach of the contract of employment. From the point of view of the employee, there are significant deficiencies in this civil law relief as a remedy. Because an employer is generally entitled under the terms of the contract to dismiss upon giving the appropriate period of notice as stipulated by the contract, damages will often be limited to the loss of earnings during that period. The civil law does not provide for a remedy by way of reinstatement. There is no remedy based upon breach of contract for failure to follow appropriate grievance and disciplinary procedures prior to dismissal. However, it will be argued below that the development of the concept of unfair dismissal and the range of remedies available in respect of it has perhaps empowered the employee to too great an extent with the ironic result that he may ultimately be less well served as a result of a consequent reluctance on the part of prospective employers to expose themselves to the consequences of employing an individual who will in due course be in a position to pursue such a powerful array of relief against them.

Unfair dismissal is a wholly distinct concept first introduced by the Industrial Relations Act 1971. Section 94 of the Employment Rights Act 1996 (ERA 1996) now provides:

An Employee Has The Right Not To Be Unfairly Dismissed By His Employer.

This is the basis of the remedies which may now be pursued in the Employment Tribunal but it is unhelpful as a definition. In W Devis & Sons Ltd v Atkins, Phillips J described unfair dismissal as narrowly and to some extent arbitrarily defineda form of words which could be translated as being equivalent to dismissal 'contrary to statute'. This underlines the fact that the law of unfair dismissal is entirely a creature of statute and as such is far more highly codified than the civil remedy. Since the remedy of unfair dismissal and the legal machinery by which it is awarded were born in an era of strife in industrial relations, it is perhaps unsurprising that the balance between the rights of the employee not to have his employment terminated without justification and the interests of the employer (often profit-motivated) to be able to select, regulate and remove employees is often highly contentious and political. There is frequent disagreement as to whether employees are sufficiently protected or whether, by contrast, the employer is now so beset by procedural requirements and sanctions for their breach that the recruitment and dismissal of employees has ceased to be able to respond freely to the merits or demerits of the individual employee and the need to control a workforce in the interests of the particular company or undertaking in question.

Types of Dismissal
The three types of dismissal are contained in s.95(1) of ERA 1996:

Direct dismissal;
Expiry of a fixed term;
Constructive dismissal.
The first is seemingly the most straightforward but is not without its own complications. Instructions that may appear unequivocal to the layman will not necessarily be interpreted by the Employment Tribunal or the Employment Appeal Tribunal as constituting a dismissal. Thus, in Futty v D & D Brekkes Ltd a foreman on Hull Docks told an employee that if he did not like his job he should f*** off!. The tribunal held that this instruction should be seen in the context of the manners of expression usual on Hull Docks and that it should not be regarded as a dismissal. By contrast, a dismissal may be found even though the termination of employment is not expressed in that way: in Robertson v Securicor Transport Ltd, the claimant had broken a company rule by signing for a contained which had not been received. He was presented with the alternative of resigning or being dismissed. He chose resignation but this was held in effect to be a dismissal. The...
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