PART 2 (TERMINATION) - Employment Rights Act 1996
WILL BE PQ
COMMON LAW - WRONGFUL DISMISSAL
1. Was employee dismissed?
On notice, summary or constructive s.95(1)(c) employee resign w/out ntoice bc employer
repudiatory breach destroy trust + confidence (Western Excavating v Sharp)
2. Summary dismissal: did employee repudiate contract? Breach reasonably destroy
trust + confidence?
Single act if wilful show intend to abandon CoE (not follow conflicting order by
mistake Laws v London Chronicle) Misconduct (manager fail rectify colleague
misconduct Adesokan) Profanities (not if respond to persistent trivial complaints
Wilson v Racher) unauthorised access confidential info (Denco Ltd v Joinson)
serious (not discuss patient on train Chhabra) not reaching standard of cl's skills
insufficient (Dietman)
Employer can rely on misconduct discovered after dismissal (Boston Deep Sea
Fishing v Ansell) or years before (send pornographic email Williams v Leeds United)
to defeat WD claim
3. Constructive dismissal: did employer repudiate? Destroy trust and confidence?
Western Excavating v Sharp
4. Was notice given? contract term or Minimum periods s.86
By employer:
Less than 2 yr work: 1 week
More than 2 yr work: 1 week for every yr 12 weeks max
By employee (employed 4 weeks): 1 week
Waive right or payment in lieu s.86(3)
5. What remedy does cl want? Damages or injunction
Injunction if: 1) srs issue to be tried 2) injunction conditions met 3) convenience
favour order
disciplinary procedure Chhabra NOT if CoE already terminated, keep going to
work + seek injunction Geys
Potentially available if damages aren't (Edwards)
6. If damages, what can be claimed?
Wages lost until earliest termination date, deduction no better off than if worked,
nothing if immediately got/should've got another job (Gunton) breach trust and
confidence harmed rep/limit opps future job (Malik v BCCI) subject to JEZ
duty to mitigate loss
no compensation for injured feelings/rep (Addis v Gramophone) or discretionary
payment (Lavarack v Woods of Colchester) unless discretion fettered good faith
reasonable (would've got if discretion exercised honestly Horkulak v Cantor
Fitzgerald)
7. Is claim barred by JEZ? Can only claim for contractual breach before/unconnected to
dismissal itself Johnson v Unisys manner of dismissal barred acts independent from
dismissal outside JEZ can claim Eastwood (eg abuse disciplinary procedure w/ suspension +
false charges) cant get damages for breach of contractual disciplinary procedure even if
before dismissal injunction possible (Edwards )
no DOC for psych vulnerable in dismissal but may for suspension (McCabe v
Cornwall)
WILL BE PQ
COMMON LAW - WRONGFUL DISMISSAL
1. Was employee dismissed?
On notice, summary or constructive s.95(1)(c) employee resign w/out ntoice bc employer
repudiatory breach destroy trust + confidence (Western Excavating v Sharp)
2. Summary dismissal: did employee repudiate contract? Breach reasonably destroy
trust + confidence?
Single act if wilful show intend to abandon CoE (not follow conflicting order by
mistake Laws v London Chronicle) Misconduct (manager fail rectify colleague
misconduct Adesokan) Profanities (not if respond to persistent trivial complaints
Wilson v Racher) unauthorised access confidential info (Denco Ltd v Joinson)
serious (not discuss patient on train Chhabra) not reaching standard of cl's skills
insufficient (Dietman)
Employer can rely on misconduct discovered after dismissal (Boston Deep Sea
Fishing v Ansell) or years before (send pornographic email Williams v Leeds United)
to defeat WD claim
3. Constructive dismissal: did employer repudiate? Destroy trust and confidence?
Western Excavating v Sharp
4. Was notice given? contract term or Minimum periods s.86
By employer:
Less than 2 yr work: 1 week
More than 2 yr work: 1 week for every yr 12 weeks max
By employee (employed 4 weeks): 1 week
Waive right or payment in lieu s.86(3)
5. What remedy does cl want? Damages or injunction
Injunction if: 1) srs issue to be tried 2) injunction conditions met 3) convenience
favour order
disciplinary procedure Chhabra NOT if CoE already terminated, keep going to
work + seek injunction Geys
Potentially available if damages aren't (Edwards)
6. If damages, what can be claimed?
Wages lost until earliest termination date, deduction no better off than if worked,
nothing if immediately got/should've got another job (Gunton) breach trust and
confidence harmed rep/limit opps future job (Malik v BCCI) subject to JEZ
duty to mitigate loss
no compensation for injured feelings/rep (Addis v Gramophone) or discretionary
payment (Lavarack v Woods of Colchester) unless discretion fettered good faith
reasonable (would've got if discretion exercised honestly Horkulak v Cantor
Fitzgerald)
7. Is claim barred by JEZ? Can only claim for contractual breach before/unconnected to
dismissal itself Johnson v Unisys manner of dismissal barred acts independent from
dismissal outside JEZ can claim Eastwood (eg abuse disciplinary procedure w/ suspension +
false charges) cant get damages for breach of contractual disciplinary procedure even if
before dismissal injunction possible (Edwards )
no DOC for psych vulnerable in dismissal but may for suspension (McCabe v
Cornwall)
