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Employment Law - Assignment Example

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An employee is deemed to have been wrongfully dismissed if there is no adequate notice by the employer as per their employment contract. Notwithstanding a breach of contract, unfair dismissals occur if they do not fall under one of the six fair reasons allowed by law…
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Employment Law
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Download file to see previous pages An employee is deemed to have been wrongfully dismissed if there is no adequate notice by the employer as per their employment contract. Notwithstanding a breach of contract, unfair dismissals occur if they do not fall under one of the six fair reasons allowed by law. Besides, unfair dismissal occurs if the employer has not followed a fair procedure and has acted unreasonably in the dismissal of the employee. Under certain circumstances, employer must comply with the ACAS Code of Practice on Disciplinary and Grievance Procedure failing which the Employment Tribunal will find for the employee. The Tribunal has the discretion to increase the award by 25 % if the employer has not complied with the Code. Employees have the right to insist on reasons for dismissal in writing under section 92(1) of the Employment Rights Act 1996. (ERA) since a written statement can serve as evidence in any subsequent Tribunal proceedings. If the employer has not shown lawful reasons for dismissal, not followed the set procedure and not given sufficient notice, the employee can claim unfair or wrongful dismissal. Requirement of a notice depends on the terms of employment contract i.e whether the employment is for a fixed period or an indefinite period. If indefinite, the contract must have a provision for the period of notice by the employer or employee. In case of notice period mentioned in the contract, a reasonable notice is a must though the length of notice can vary according to circumstances and industry norms. However, an employer is required to give a statutory minimum period of notice i.e one week’s notice if the employee has worked continuously for one month or more but less than two years. If the period of service is two years or more but less than 12 years, one week’s notice is required for each year of continuous employment. If the employee has worked for 12 years or more, employee is entitled to minimum 12 weeks’ notice. This is regardless of any shorter period mentioned in a contract, though longer period than statutory period is allowed. A notice already issued cannot be withdrawn without a mutual consent. If there is no notice given by the employer, it will amount to wrongful dismissal entailing payment of damages equivalent to the wages and benefits for the stipulated period of notice. In case of a PILON (payment in lieu of notice) clause in the employment contract, it will not amount to breach of contract if the employer has given money to the employee in lieu of notice. However, if the employee has committed serious or gross misconduct, summary dismissal without notice with immediate effect is justified. The seriousness or gross nature of misconduct will depend upon the circumstances. Theft, fraud, physical violence, serious negligence or serious breaches of health and safety rules are instances of serious misconduct. Examples are usually illustrated in the disciplinary procedure prescribed by the employer. For claiming wrongful or unfair dismissal, an employee must have put in one year of continuous employment with the employer. The qualifying period of employment has been increased to two years from the date of 6 April 2012. This will not apply to those employees whose qualifying period commences before 6 April 2012. A fair dismissal exists in the following circumstances as mentioned in section 98 (1) of the ERA: Lack of skill or qualifications. 2. Misconduct by the employee. 3. Redundancy. 4. Retirement. 5 Breach of an Act in case of continued employment. 6. Any other reason of substantial nature. Even then, it is expected of an employer to follow a fair procedure to dismiss the employee as mentioned in section 94(4) of the ERA. Of these reasons, conduct on the part of the dismissed employees herein is of immediate relevance. In order to decide whether the employer has acted fairly in dealing with his employee’ ...Download file to see next pagesRead More
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