Understanding Employment Contracts
- 08 Pages
- Published On: 05-12-2023
INTRODUCTION
A contract of employment is an agreement which lays out the rights, responsibilities and duties of both the employer and the employee, stated as ‘terms’ of employment. It can be written or made informally also, like orally, or in some cases no oral or written form of contract is needed. Thus, a contract where the terms are agreed upon orally can be also legally valid and binding like a written contract. The terms of the contract are bifurcated into express and implied terms. Where there is no contract of employment, the express terms would consist of the points which were agreed upon by both the employee and the employer verbally in a conversation. Implied terms are those which enforce obligations on both the employers and employees.
A dismissal means ending of employee’s contract by the employer. The employer must use fair procedure while dismissing someone. An employee will be dismissed only if it is reasonable. However, the employee can claim for the unfair dismissal even if the reasons stated by the employer for dismissal was valid. There are five main reasons for dismissing someone fairly namely, conduct, capability, redundancy, legal reason and some other substantial reason. The employer has to act reasonably while dismissing for any of the previously stated reasons as The ACAS Code of Practice on Disciplinary and Grievance Procedure is kept in mind by the employment tribunals when they decide the dismissal on the grounds of conduct and capability. The employer has to show that the decision to dismiss was within the limits of rational responses available to him. Any other reason may for which the employee was dismissed may fall under unfair dismissal. The fairness of the decision of the employer to dismiss is decided by the tribunal. If it finds the dismissal to be unfair then statutory remedies such as compensation, reinstatement or reengagement is given to the employee.
S. 86 of the Employment Rights Act, 1996 deals rights of the employer and employee to minimum notice. Reasonable notice has to be given before the termination of the contract.
- Springhouse Solicitors, “what are your rights with no contract of employment?”, https://www.springhouselaw.com/knowledge/rights-without-contract-of-employment/text=Statutory 20rights 20without 20contract 20of 20employment&text=That 20means 20employees 20always 20have,minimum 20rest 20breaks text=redundancy 20pay accessed on 10th March, 2021
- Jaluch HR and Training, “5 reasons for dismissal”, < https://www.jaluch.co.uk/hr-blast/5-fair-reasons-for-dismissal/> accessed on 10th March, 2021
- Thompsons Solicitors, “Summary of the law on unfair dismissal and redundancy”, < https://www.thompsonstradeunion.law/media/1175/unfair-dismissal-a-summary-of-the-law-thompsons-solicitors.pdf > accessed on 10th March, 2021
- UK Govt, “Employments Rights Act, 1996” < https://www.legislation.gov.uk/ukpga/1996/18/section/86> accessed on 10th March, 2021
- NetMan Law, “Employment Rights Act, 1996”, https://www.netlawman.co.uk/ia/era-1996 accessed on 10th March, 2021
- The Acas guide, “Discipline and Grievances at work”, page 16 < https://www.equalityhumanrights.com/en/file/17841/download?token=sUILNF3v > accessed on 10th March, 2021
- Chander Tina, Wright| Hassal “,Unfair Dismissal- what is unfair dismissal in the UK?’ < https://www.wrighthassall.co.uk/knowledge-base/unfair-dismissal-what-is-unfair-dismissal-in-the-uk > accessed on 10th March, 2021
- Mordsley, Barry I. and Wall, Steven R. (1983) "The Dismissal of Employees under the Unfair Dismissal Law in the United Kingdom and Labor Arbitration Proceedings in the United States: The Parameters of Reasonableness and Just Cause," Cornell International Law Journal: Vol. 16: Iss. 1, Article 1. Available at: http://scholarship.law.cornell.edu/cilj/vol16/iss1/1l
- Earl v. Slater & Wheeler (Airtvne) Ltd [1973]1 WLR 51
- Supra 8
- Supra 7
- Ibid.
- Landau Law Solicitors, “Employment Lawyers- right to appeal.”, < https://www.landaulaw.co.uk/appeal/ > accessed on 10th March, 2021
- CMS, Law Now, “Termination of employment in England and Wales”, < https://www.cms-lawnow.com/ealerts/2002/08/termination-of-employment-in-england-and-wales?sc_lang=en#:~:text=There 20are 20two 20main 20rights,referred 20to 20as 20wrongful 20dismissal). > accessed on 10th March, 2021
- Ghartey v Royal Museums Greenwich ET/2301169/2014.
- Springhouse Solicitors, “what are your rights with no contract of employment?”, < https://www.springhouselaw.com/knowledge/rights-without-contract-of-employment/#:~:text=Statutory 20rights 20without 20contract 20of 20employment&text=That 20means 20employees 20always 20have,minimum 20rest 20breaks&text=redundancy 20pay > accessed on 10th March, 2021
- Jaluch HR and Training, “5 reasons for dismissal”, < https://www.jaluch.co.uk/hr-blast/5-fair-reasons-for-dismissal/> accessed on 10th March, 2021
- Greg Gilford, 2016, “ Is Dismissal for persistent lateness fair? “, < https://www.hrsolutions-uk.com/dismissal-for-persistent-lateness/ > accessed on 10th Marchi, 2021
- Supra 14
Employment duration period determines the duration of a reasonable notice period. The minimum notice period shall be of one week in cases of dismissal if the employee has worked for more than one month. The length of the notice period shall increase to two weeks where the employee has served more than two years. The duration shall increase to three weeks after 3 years of service and so on to twelve weeks of maximum notice period.
Unfair Dismissal is dealt under Section 94 of the Act. It prevents the employee from being unfairly dismissed by the employer. The employer must determine the reasons that resulted in dismissing the employee.
S.98(2) states valid reasons to dismiss an employee which are as follows :- (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do
(b) relates to the conduct of the employee
(ba) is retirement of the employee
(c) is that the employee was redundant, or
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.
Additionally, the employer has the right to dismiss the employee under S.98 (1) for some other substantial reason.
It is important that the procedural integrity of the unfair dismissal proceedings is maintained for two reasons. Firstly, more accurate results shall be developed by providing procedures relating to the matters such as appeals, unfair dismissal proceedings. Secondly, the employees shall accept the legality of the disciplinary steps rising from the hearings more that are conducted in a procedurally just manner. It is essential that integrity of the procedure is maintained
A. LEGAL CLAIMS THAT MAY BE BROUGHT AGAINST LEANNE BY ROSS
Ross has worked as a manager at Dancers in the accounts department for three years. He qualifies for the right to bring claim for unfair dismissal as employees who have worked for two years or more can do so.
i. According to the ACAS Code of Practice on Disciplinary and Grievance Procedure, Leanne should have carried out an investigation of the potential misconduct without unreasonable delay. It should be done in a fair and reasonable manner. However, she relied upon the statements of another employee where she had been told that Ross would be late for an hour that day. Neither did she not take notice Ross’s denial of such an accusation nor look for any evidence which supported any of the sides. The tribunal will look for all the evidences which compelled Leanne to take this decision. Apart from the statement of the other employee she does not have any other evidence to support her decision. Compensation can be awarded to Ross by way of compensatory award and can be increased by up to 25% if compliance to the Code is not done by Leanne.
In W. Weddel & Co. Ltd v. Tepper, the court of appeal held that there was an unfair dismissal for an alleged theft because the employer had not provided an adequate opportunity to the employee to defend himself which was contrary to the Code of Practice. The Court found out that the employer did not conduct a reasonable investigation as he faiked to render the employ with a chance to be heard.
ii. A disciplinary meeting should be held without further delay and Ross should have been given appropriate time to prepare for his case. The employers and employees should have
tried to attend the meeting. Leanne should have explained the complaint against him to everyone and go through the evidences collected by her. Ross should also have been allowed to answer the allegations and give evidence on his behalf. Relevant witnesses should have been called upon. However, Leanne did not listen to Ross and took in consideration to what the other employee said about Ross being late by an hour that morning.
Conventionally the British Law on unfair dismissal asserted upon strict adherence to the requirements of fairness in procedures when there was a consideration in reasonableness of a discharge. In Earl v. Slater & Wheeler (Airtvne) Ltd.., the court had held that dismissal on the ground of misconduct was unfair if the employer had not given the opportunity to the employee to state his case. this came to be known as the “inconceivability test” which made it very challenging for an employer to prove that it would make no difference in the result of a dismissal hearing by providing the employee with a chance to state his case.
iii. The employer has to give reason for the fair dismissal. Leanne did not give him reasons in writing before dismissing him. Ross had worked for three years continuously and is entitled to get a written statement containing the reasons for his dismissal. He is eligible to bring a claim to the employment tribunal on this basis as he has worked over two years. If Ross is successful then the employment tribunal may make an announcement stating why Ross was dismissed and will give him an award of two weeks’ pay as compensation which will be subject to the statutory limit on week’s pay. According to the current statutory limit £525 can be paid to Ross.
iv. A notice period of only one week was given to Ross. According to the S. 86 of Employees Rights Act, 1996, where the employee had worked for more than three years a minimum notice period of three weeks should have been given to him.
iv. Right to appeal is given to the employees against a disciplinary action in writing. It should be heard without reasonable delay. The employer should inform this to the employee and it should be done within the given time period from the original decision. Not only Leanne did
not inform Ross about his right to appeal but also refused him when he asked her if he could appeal against dismissal. This could lead to unfairness in Leanne’s decision and also deny her the opportunity of procedural defects in the initial disciplinary hearing.
B. THE POTENTIAL LEGAL REMEDIES
The Employment Tribunal recently resolved the question of dismissal of an employee for persistent lateness in the case of Ghartey v Royal Museums Greenwich after Mr Ghartey, a former visitor assistant at the museum was dismissed from his role following an aggregation of warnings. Mr. Ghartey’s timekeeping was raised as an issue by the Museum in both 2005 and 2006. The museum had a conversation with him about his absence due to sickness in 2013 and finally issued a written warning in 2014 after a period of self-appointed absence. The museum decided to hold a timekeeping and attendance drive around the same time with every employee who had been receiving a formal warning for ten or more registered timekeeping offences from the past few years. The formal warning triggered Mr. Ghartey’s dismissal as he was one of those employees.
Mr. Ghartey brought the claim to the Employment Tribunal on the grounds that:
He had to take help of the public transport to go to work The former two warnings were not fair and just The final written warning did not mention the next misconduct would result in dismissal. The timing of the attendance drive was questionable.
The Employment Tribunal recognized the difficulty in his transportation for coming to work. However, it stated that it was the responsibility of an employee to take reasonable measures in order to reach to the place of work on time.
The Tribunal stated that the former warnings would have to be interpreted at the face value, as Mr Ghartey should have brought up a complaint when they were issued if he thought that they were not reasonable. It was also noted by the Tribunal that Mr Ghartey was alerted that dismissal would be the possible final result when he was given the final warning
The tribunal is of the view that the timing of the attendance drive was just bad luck for Mr. Ghartey. The grounds on dismissal for lateness was fair and just as he was responsible for his own timekeeping and attendance at work.
Representative nonappearance can seriously affect your efficiency and your benefits, which is the reason it's essential to have an unmistakable nonattendance strategy and methodology set up. Utilize this to set out both the conduct that you expect of your representatives and the disciplinary move that you can make in case of any offense.
Industrious delay can prompt excusal, however just as long as you oversee it decently and reliably. On the off chance that you are having any issues with helpless timekeeping and participation kindly call us for exhortation.
Leanne gave Ross a formal written warning on the ground of his misconduct which was arriving late at work a month ago. She gave him the time to improve his time-keeping. Furthermore, he was also given one week’s notice when he came late again. She warned him before his dismissal along with one week’s notice. There is no particular legal requirement to fulfil a criterion for a fixed number of warnings that should be given before dismissing an employee.
BIBLIOGRAPHY
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