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Winn LJ commented that the general rule to termination is that, the resolution of

relations between employers and employees should be attained through


simplicity of means, the tools used to gain access to legal rights and obligations
should not be allowed to produce a waste of time and energy. WD is one of the
tools used to assess the types of termination of employment. It is a form of
termination that occurs by breach of contract; as a result this legal foundation it
is also defined by the general rules that govern contracts. The breach must be in
relation to an essential term, it ought to be serious enough to deny the other
person of what they had contracted for, or, it displays that the other party no
longer wishes to be bound by the fundamental terms of the contract; an example
of such a term is a wages, however, there are defences available to the nonpayment of wages . Whether there is a defence or not depends on the
circumstances of each case. Dismissal can be express or constructive, express
being an overt declaration to dismiss, and may also occur constructively when
the employer rejects the contract by breaching a vital term, or showing that s/he
has no further intention to be bound by the contract, following with the employee
having no other choice but to leave; this is referred to as constructive dismissal.
Lastly, the third method is the expiry of a limited term contract which applies to
legislative claims. Both express and constructive dismissal forms qualify under
UD.

The essence of WD is that there has been a wrongful act in the dismissal of an
employee; which is where an employer discharges an employee with no or
inadequate notice. The length of the notice period can be expressly approved by
the parties involved and written in the contract of employment. If not, then the
common law may imply a period of reasonable notice, which is reliant on the
circumstances of the employment in question; for example the consideration of
the worker status. Where there is an express term to terminate without cause
and at any time during the course of employment, it will be enforced and
overshadow the above implied reasonable notice principle. The Contracts of
Employment Act changed the stance on the common law perspective on the
minimum notice limit; this is now encapsulated in ERA. The legislative principle is
that if an employee has been in employment from one week to two years, the
length of notice is one week; over twelve years the notice period is twelve
weeks; so for every added year of work an extra week is added to the notice
period i.e. six year of employment gives you six weeks of notice. But if the
contract stipulates for there to be a longer period of notice then that term
overrides the statutory provision. However, under the ERA there is an exclusion
that notice does not have to be given if the employer in question has a
cause/justification for the lack of dismissal; known as summary dismissal. The
test for whether the dismissal was justifiable was displayed in Laws , the court
stated that where the action by the employee shows that s/he disregarded the
essential conditions of the contract of services then the lack of notice is lawful
i.e. gross misconduct equating to actions such as theft . The factors to take into
consideration include the position of the employee, his/her past record, the social
conditions at the time. A series of behaviour resulting in a breach of contract can
lead to a definitive cause, referred to as the last straw.

UD unlike WD is not bound by the rules of contract and instead its existence is
statutorily based, meaning it is governed by its own legislative provisions.
Putting the aspect of automatic unfair dismissal aside, there is a criterion for
both parties to follow when it comes to UD claims. To be able to bring a UD claim
the employee must show that s/he is qualified, and also prove that s/he was
dismissed. If the employee satisfies both conditions, then the onus of proof then
transfers to the employer to prove that s/he exercised a fair reason in dismissing
the other party. There are six possible reasons that will be found to be potentially
fair; these being conduct, capability, retirement, redundancy, holding a position
that contravenes duty or restrictions under law, and some other significant
reason. If at this point the employers reason did not fall into this list, then the
tribunal will move to provide a remedy for the employee and the employer will
have lost. If the employers reason falls under the six reasons then the tribunal
moves onto assessing the fairness of the dismissal in accordance with s. 98(4)
ERA. The question whether the reason for dismissal is fair or unfair depends on
whether in the circumstances the employer acted reasonably or unreasonably in
treating it as a sufficient reason for dismissing the employee, evaluation of the
size and administrative resources of the employers undertaking will be
considered and will be determined in accordance with equity and the substantial
merits of the case. The tribunal should not insert its decision as that of the
employer; the test is that of the reasonable employer not the reasonable man.

One of the reasons for the introduction of UD was the failure of WD to remedy a
dismissal which was carried out in a procedurally unfair manner.

British Home Stores alongside with ACAS Code of Practice provide a


recommended procedure be followed to establish a fair dismissal. Even in the
instances of gross misconduct where there is no necessity to inform the
employee if s/he is caught out, the code recommends that the employee should
be given the right to appeal. In British Home Stores the court provided a three
part test. Did the employer believe in the reason for dismissal? Did the employer
think he had reasonable grounds to uphold his belief? And lastly, did the
employer conduct a reasonable level of investigation into the issue, given the
circumstances? The last point emphasises the significance of procedural fairness.
The leading authority on the issue was demonstrated in Polkey, Lord Mackay
commented,If the employer could reasonably have concluded in the light of the
circumstances known ...that consultation or warning would be utterly useless he
might well act reasonably even if he did not observe the provisions of the code.
Failure to observe the requirement of the code ...will not necessarily render a
dismissal unfair. Whether in any particular case it did so is a matter for the
industrial tribunal to consider in the light of the circumstances known to the
employer at the time he dismissed the employee. So, if following the ACAS
procedure of dismissal, in terms of warnings and consultations, would be
reasonably assessed as useless, then the lack of procedural fairness would not
automatically render the dismissal unfair, however this is a contentious area
where the pendulum swings back and forth from case to case . To reiterate, WD
is solely concerned with the breach of contract, the reasonableness of the

employers conduct or contributory conduct on part of the employee does not


come into play and only applies in UD.

In the past, due to the concepts having different origins they both were heard
separately. UD litigations were conducted in employment tribunals whereas WD
cases were carried out in county courts, High Courts (depending on how much
was claimed) etc. However, this stance was somewhat altered as a result of
prolonged debate on the subject; it was decided that WD claims for 25,000 or
under may be heard in Employment tribunals (ET). As a result, ETs have parallel
jurisdiction with ordinary courts over WD cases; this overlapping should not be
confused as a shift of jurisdiction from one to another.

There are a number of requirements for WD claims to be heard in ETs. Only in the
event where the breach of contract has something to do with the termination of
the employment contract does the ET have a right to hear the case; their
jurisdiction does not allow them to hear cases regarding the contract during its
actual performance. There are exclusions to this rule, ETs cannot hear breaches
relating to termination when it comes to restrictive covenants, restraint of trade
or duties of confidentiality, copyright, or claims for personal injury. For example,
in practice a claim that the WD rendered the restraint of trade covenant
annulled, would be heard in the ordinary civil courts .Thus, where the ET does
not have jurisdiction the civil courts do.

Sometimes a claim will bring out both causes of action, WD and UD, from the
same facts. An employee can claim under both heads and have the possibility of
winning one or both claims, but, s/he wont be compensated twice for the same
loss. Also when brought together usually the courts will decide to stay one while
reaching the outcome of another. This may lead the applicant into having to
make a decision which claim and jurisdiction to continue with. In relation to
where the claim is heard, an important cause for favouring one authority over
another is the cost prerequisite of the ET. Normally, ET claims require each party
to pay for their own costs, save when a party acts vexatiously, abusively,
disruptively or otherwise unreasonably; the offending party could be forced to
reimburse some or all of the other partys expenses. On the other hand, the
procedure in civil courts is that the loser pays the winners costs. When taking a
WD or UD claim further, another major deciding factor until recently was legal
aid. Aid was available for WD in the manner of the green form scheme, but not
for UD. There was, however, varied debate on the subject of UD not receiving
legal aid and arguments for extending legal aid to tribunals. The government
generally disregarded the opinion and debates based on the issue of cost. With
the introduction of the conditional fee agreements the stance changed on the
application of legal aid. This scheme has been commented to have lead to a
flood of lawyers in ET which worked against the aim of the Donovan Report
(which aided in the creation of the law of UD) where the committee made clear
that ETs ought to be accessible and efficient ; the use of lawyers adds
unnecessary formality and thereby decreases efficiency. As it stands now, civil
legal aid is available for advice in respect of both UD and WD at ET level (not for

representation before the ET), and for both advice and advocacy for appeals to
the Employment Appeal Tribunal (EAT). Legal aid is still given for advice and
representation in WD cases which are heard in the civil courts. The new coalition
government has put forward a green paper proposal aiming to make cuts in legal
aid to all those cases that are relatively less important. This applies to those
applicants are not particularly vulnerable and those that can seek other means of
dispute resolution or legal access, employment being one issue which they
interpret as having fit this criteria. So the little aid that is available may be
scrapped altogether should the proposal pull through.

As a result of the different judicial sources there is a difference in the limitation


time period between WD and UD. WD has the luxury of six year limitation period
to bring a claim to the civil courts; however, UD has a limitation period of three
months from the effective date of termination. Despite this, the UD time limit can
be bypassed by the not reasonably practicable exemption . The principle was
more recently described in Peacock by the EAT as a 2 part test: was it reasonably
practicable to present the claim within the 3 month time limit? If it was not then
was it submitted within a reasonable time after that? This is a fairly strict and
constricted assessment. A three month deadline in bringing an ET1 (previously
IT1) claim form, at a legal perspective, is a fairly restricted amount of time. If
brought in late, the UD claim does not succeed, and the issue may be taken on
as an issue of negligence against the solicitor who erred in the late submission.

Another key difference is that ETs powers are also restricted in the remedies
they can enforce; they cannot order injunctions or declarations as they are a
creation of legislation, they do not have the same nature and inherent powers of
the civil courts.

Distinctions between the two types of dismissal are demonstrated in the varying
circumstances that would make someone eligible to bring the claim under each
one. For example, a WD claim can be brought by anyone involved in a contract of
services. UD, on the other hand, concerns employees alone.

There is no qualifying period for WD unlike UD. To qualify in bringing a UD claim


requires someone to have initially 6 months of employment, it was raised by
previous governments, first to a year in 1979 and then to two years in 1985 .
Reason for the length was to exclude part timers from claiming UD and economic
necessity. Both reasons came under attack under EU law and the part time
worker restriction was removed as it indirectly discriminated against female
workers, which cannot be justified by the governments aim for economic
benefit. The courts then later reduced the two year limit to one years continuous
employment in order to aid to the access of UD remedies. However, more
recently there has been some indication of an extension in the qualifying period
once more. The government has stated it aims to get rid of the red tape that
may hinder businesses. Lord Young, the enterprise tsar under the coalition
government, commented on a radio programme saying that an increase in the

qualifying period to two years was being considered. He justified the proposal
mentioning the two year limit had previously aided in improving employment
statistics. Hurly Nick comments that UD claims have increased year-on-year, but
so too have nearly all types of discrimination claims. If the 2 year limit goes to
plan claimants who are dismissed with less than two or three years' service are
more likely to frame their claims around discrimination... with compensation for
discrimination technically unlimited and, in fact, more costly to businesses,
arguably these complaints pose a much greater threat than UD, therefore, such a
change is likely to bring about the opposite effect to that which is desired.
However, as of yet there is no sign of this measure being taken on as official
government policy.

There are specific rules around the upper age limit in claiming UD; contrastingly,
WD does not have an upper age limit. The exception to UD that causes most
concern is that employees that are over 65 or their normal retirement age are
not able to seek UD. This exception was not over turned but instead fitted in with
the arrival of the Employment Equality (Age) Regulations. This act is merely an
illusion of actual change; although now there is no upper limit for a claim, the
regulations force employees to retire at 65 or at the employers normal
retirement age (not less than 65).

Another difference was displayed in Devis, where The House of Lords held that
an employers decision of dismissal is based on the facts known to him at the
time of dismissal; s/he cannot then in retrospect validate the UD by bringing up a
different reason to dismiss which s/he found out after the dismissal. Though, if
there is new evidence brought during the point of appeal the tribunal may look at
it so long as it coincides with the original ground for dismissal , it does not,
however, allow the employer to set up a whole new ground for dismissal .
Although, at common law WD can retrospectively be justified in this way.
Furthermore, previously the employer had no duty to provide a reason for WD;
this position was altered under ERA, it states an employee is entitled to be
provided by his employer with a written statement giving particulars of the
reasons for the employees dismissal.

Possible remedies under WD include claimants being awarded damages, or


enforce injunctions and declarations. The main remedy, damages, intends to
place the innocent party in the position s/he would have been in had the
contractual obligations been fulfilled properly. Contrastingly, for UD cases, the
main awards include re instatement or re-engagement. In reality however, the
common perception is that the tribunal, although unintended, deal with giving
the wronged party compensatory awards and/or basic awards as their main
means of redress. The reason being it is often difficult to re-integrate employees
who have suffered vexatious behaviour on part of their employer. The amount of
the compensatory award is based on the heads established in Norton Tool and
the amount given will be what the tribunal considers to be just and equitable in
all circumstances. The entitlement of the basic award under UD is the amount
given once UD has been established; the basic award is determined based on the

period of continuous employment backtracking from the date of termination


awarding the appropriate amount for each of the years. There is, however a limit
to both the basic award and compensatory award. The basic award limit under
statute is the maximum amount for a weeks pay 380 making the total limit
amount 11,400 with a minimum basic award of 4,200 applicable to a number of
situations . The compensatory amount is capped at 66,300. However, there is no
cap on the award of damages by the civil courts for WD. Also, a major difference
between these awards and damages given on WD is that they are assessed on
the form of dismissal that occurred, and in some circumstances, may increase
because of factors like future employability, unlike WD.

To conclude the main differences in reaching an effective remedy ranges from


factors claimants eligibility for each claim to their remedy caps.

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