Unfair Dismissal
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
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
Bibliography: Bowers, J., A Practical Approach to Employment Law, (7th Ed., 2005) Holland, J. & Burnett, S., Employment Law, LPC Guide 2005 Selwyn, N., Selwyn 's Law of Employment, (13th Ed., 2004) Westlaw www.opsi.gov.uk