Constructive Dismissal and Unfair Dismissal Claims - Essay Example

Constructive Dismissal and Unfair Dismissal Claims Raj AFSB’s termination of Raj’s employment contract constitutes summary dismissal. This is because he has been discharged from his duties instantly without prior notice or any warnings or any pay that should accompany such notices. The main reason behind his dismissal is trumped up charges of gross misconduct, when in the actual sense theft, fraud, and violence are the malpractices that meet the thresholds for such an arbitrary action of the employer. In light of his summary dismissal, Raj has the rights to pursue claims for his unfair dismissal and wrongful dismissal. Unfair dismissal Although, Raj’s employer reserved the legal right to end his employment contract, their failure to serve proper notice on him regarding the issue amounts to unfair dismissal. The dispute is therefore actionable by the Employment Tribunal or Court (Collins, 2011). Failure to provide proper Raj with notice of his impending dismissal amounts to wrongful dismissal in the sense that the employer showed clear disregard for the employment contract which they signed with the employee in question. Unfair dismissal is provided for under Section 95 of the Employment Rights Act 1996. Owing to the low evidentiary threshold for establishing unfair dismissal even where the employer had adhered to the provisions of the employment contract, proving Raj’s case is easier. The enforcement of a fair dismissal requires the grounds for the action to fall within the parameters of one of the half-dozen fair grounds for dismissal stipulated in the Act. These include: gross conduct, incompetence or lack of qualifications, redundancy, violation of laws, and or some other substantial reason (SOSR) (Cabrelli, 2009). Unfortunately, Raj’s summary dismissal for mere, unintentional lateness by 20 minutes due to train delay fails to meet any of these conditions of fairness in his treatment. The employee’s long-term exemplary service and an apology over the latest incident outweigh the “gross misconduct” grounds for his dismissal. Wrongful dismissal Knight and Latreille (2001) noted that wrongful dismissal is defined by ERA § 95 as dismissal in clear disregard for the provisions of the employment contract. In this case, Raj is a victim of wrongful dismissal because the action had been executed prematurely and without sufficient notice or adequate grounds. Wrongful dismissal oftentimes impairs the relationship between the employer and the employee, but it does not end the contract (Frederic, & Anya, 2005). Such action is referred to as repudiatory breach. In this case, the employer’s action meets these conditions in the sense that it forced Raj to stay out of the job and lose the benefits which he would have gained had he been retained. Despite the fact that Raj’s employer claimed they worked within the law, in the real sense it was a case of wrongful dismissal based on the following conditions: a) the dismissal was not within the first four weeks of the engagement; b) contractual terms did not specify so, and or c) Raj did not conduct himself in a manner that impaired or could impair the faith and confidence between himself and the employer (Ainsworth, 2012). As Hardy and Butler (2011) have noted, serious violations of trust that an employer has in his or her employee may constitute gross misconduct and warrant summary dismissal. However, Raj’s behavior was far from being construed as such. Conduct prompting the employer to end the employment contract without notice is one showing that the employee is no longer interested in performing their side of the bargain under the employment contract. Raj’s lateness by 20 minutes and his immediate apology for the same on the one hand; and his refusal to carry out demeaning work as instructed by the high-handed supervisor, on the other hand, do not constitute gross misconduct. This is especially the case because employment contracts specify an employee’s job designations. Despite the cloud of vagueness surrounding what exactly is gross misconduct in the workplace employers are normally forced to retain employees who have engaged in fraud and theft pending investigations in order to be in keeping with the law. Reasonableness test The reasonableness test is also considered when establishing unfair dismissal claims (Ainsworth, 2012). Even if the Sara and the employer’s observations of Raj’s alleged misconduct justified his summary dismissal, the two reportedly acted unreasonably in the treatment of Raj. The law requires that once an employer has determined potentially just grounds for dismissing an employee, he or she is under the obligation to prove that summary dismissal was the most reasonable action to take. In this case, Raj’s lateness by 20 did not warrant the drastic step of dismissing the employee, considering that, generally, employee lateness could be resolved by lesser sanctions or warnings in writing. In addition, even if Raj’s alleged gross misconduct charges were justified, the employer practically denied him the opportunity to explore internal appeal processes that would have seen him retain his job. The employer’s conduct was unreasonable they violated the three-point test set in the case of British Home Stores Ltd v Burchell [1978] IRLR 379, which must be met before dismissing an employee as follow. They are as follows: a) the employer must have a belief that the employee in question is guilty; b) the belief must be based on reasonable grounds, and; c) the employer must carry out proper investigations to establish the credibility of the beliefs (Lewis, 1982). In light of the breach of trust which the hardworking Raj had in the employer, he can claim damages and or reinstatement arising from his wrongful and unfair dismissal by the employer Cabrelli, 2011). Remedies Raj meets the preconditions for filing for an unfair and wrongful dismissal claims because: his service to AFSB makes him an employee and not a worker; he had been relieved of his job; he had more than a two-year continuous service for the organization, and; he was not an excluded employee (Hardy, & Butler, 2011). In light of these conditions, the law considers Raj’s dismissals as typically unfair, and as such, he is entitled to remedies. As Collins (2012) has stated, Raj may ask to be reinstated to his original position as an accountant under the original contract, re-engagement, meaning reabsorption to the firm to fill a comparable or appropriate position relative to his former accountancy job; or ask for compensation for the injury he has suffered due to the dismissal. Owing to the continuing stay of Sara and her draconian policies, the best remedy for Raj is compensation consisting of basic and compensatory awards. According to Dempsey (2005), claims for unfair and wrongful dismissals are subject to time limitations. Therefore, in order to succeed, Raj should bring such claims before an employment tribunal within three months from the date of his dismissal. Regardless, Raj may still file for the claims past the time limit and be granted a hearing, provided he can prove that doing so on time was reasonably impractical and that upon the conditions becoming better, he acted within a reasonable time (Frederic, & Anya, 2005). Although, an employment tribunal will be obligated to consider Raj’s reinstatement or re-engagement with AFSB, the jury cannot force the parties back together in the event that any or the two parties are unwilling (Cabrelli, 2011). In this case, the tribunal will likely not order the reabsorption of Raj by AFSB because the new employment conditions brought about by Sara complicate the practicability of the employer to enforce such an order. Dennis Dennis’ unsuccessful attempt to petition the company’s chief executive regarding the issue of Sarah’s unfair treatment of the employees and the subsequent circulation of the demeaning e-mail message mentioning his name as one of the troublemaker employees practically complicated his work. As the result, his ‘resignation’, as the only honorable thing he could do in lieu of the conditions amounts to his constructive dismissal. Collins and M. R. F (2001) noted that constructive dismissal occurs when an employee resigns out of their dissatisfaction with the employer’s intolerable behavior. Owing to the involuntary nature of Dennis’ resignation, he has the rights to claim damages arising from the constructive dismissal. UK law In United Kingdom statutory law, constructive dismissal is well taken care of under the ERA §95(1)c, stating that the employee ends the contract with the employer with or without formal communication, provided the employer’s conduct falls below that of a reasonable party (Hardy, & Butler, 2011). Nonetheless, proving that Sarah’s actions and by extension the chief executive’s support for her amounted to high-handedness may be difficult, considering the fact that the policies which the two formulated were applicable across board and were at the core of the operations of the business. Judges may be persuaded to view Dennis’ claims of the employer’s high-handedness as to subjective to rely upon. By contrast, the conditions in which an employee can claim damages arising from their constructive dismissal have been properly defined by courts. In the case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, the court held that constructive dismissal arises from a serious violation of the trust and confidence by the employer in a manner that contravenes the implicit terms of the original employment contract (Honeyball, 2012). For AFSB to avoid such a violation in the case of Dennis, they should demonstrate that they observed reasonable care by conducting themselves in a way that was not intended to or could damage or seriously impair trust and between them and Dennis. Fortunately for Dennis, the employer lacks such proof. The employer’s decision to circulate Dennis’ name among his colleagues with suggestive threats that he should resign if he felt he could no longer work for the organization was a well-calculated strategy to rid the organization of the employee by breaching implied terms of contract (Honeyball, 2012). As Collins and M. R. F. (2001) had suggested, proving the employer’s breach of trust and the confidence, which Dennis had in them is easy, since a serious violation of any of the explicit or implicit contractual terms of employment suffices. As Hardy and Butler (2011) has suggested, all that Dennis needs is to prove to the tribunal that the employer's conduct was a significant violation of the employment contract such that the organization intended to no longer be responsible for performing the contractual terms. The employer’s daring humiliation of Dennis ‘in front’ of his colleagues to quit if he felt he could not keep up with the new organizational rules and regulations was in itself an arbitrary move that shows the employer was no longer interested in the employee’s services. Dennis’ case is almost similar to Morrow v Safeway Stores plc [2002] IRLR 9, but more serious and could be decided more in his favour than. In Morrow, the claimant was a bakery employee in the retail store. She complained of a poor working relationship between herself and her supervisor who she believed unreasonably subjected her to undue harassment in front of her colleagues (Wynn-Evans, 2002). The retailer had a special offer of its bloomer brand of bread and when the supervisor found the items were missing on the display he addressed her using inappropriate language in front of her colleagues and a client, saying if she could not do the job she earns salaries for, then someone else who would be engaged to take over from her (Hardy, & Butler, 2011). Few hours later she took another disparaging remark from the supervisor and opted to resign under distress in order to pursue constructive and unfair dismissal claims from the employer. The Employment Tribunal held that the claimant’s ‘undressing’ in public was a violation of the trust and confidence (Harmer, 2012). However, unlike in Dennis’ case where the employer was more explicit about his “dismissal” if he felt he could not keep up pace, Morrow’s case was not a repudiatory breach that warranted her resignation. Hers was like an ill-conceived form ‘motivation’ for her to be more competent in her work. Remedies Remedies are proper and fair because they take a dismissed employer back to where they would have been if they had not been dismissed form the job. In Dennis’ case, upon successful proof of his constructive dismissal, he would stand to be granted two remedies: re-employment and compensatory damages. Whereas tribunals occasionally order re-engagement for unfair constructive dismissal, they are oftentimes ineffective for wrongful constructive dismissal claims (Collier, 2011). Dennis obviously does not want to take back his job because the employment conditions are unfavourable with Sara still at the helm. Under the ERA, Denis would be entitled to damages basic and compensatory award as damages for unfair constructive dismissal. In light of this, he would be entitled to between £13,500 and £74,200 in addition to compensation for his discrimination (his naming in the e-mail circulars) (Hardy, & Butler, 2011). Above all, Dennis is under the obligation to take appropriate steps soonest to mitigate the loss arising from his dismissal by seeking employment elsewhere. References Ainsworth, D. 2012. Ex-commission man wins unfair dismissal. Third Sector, 714, p.4. Cabrelli, D. 2009. Re-establishing Orthodoxy in the Law of Constructive Dismissal: Claridge v Daler Rowney Ltd [2008] IRLR 672 and Bournemouth University Higher Education Corporation v Buckland [2009] IRLR 606. Industrial Law Journal, 38(4), pp.403-411. Cabrelli, D. 2011. Buckland v Bournemouth University Higher Education Corp: Statutory Constructive Dismissal and the Implied Term of Mutual Trust and Confidence. Industrial & Labour Relations Review, 54(4), pp.816-834. Collier, G. 2011. Time to embrace 'no fault' dismissal. Institute of Public Affairs Review, 63(1), pp.38-41. Collins, H. 2011. Constructive Dismissal and the West Lothian Question: Aberdeen City Council v McNeill. Industrial Law Journal, 40(4), pp.439-450. Collins, H. 2012. Compensation for Dismissal: In Search 
of Principle. Industrial Law Journal, 41(2), pp.208-227. Collins, H., & M. R. F. 2001. Notes. Claim for Unfair Dismissal. Industrial Law Journal, 30(3), pp.305-311. Dempsey, K. 2005. Legal Q & A: The qualification for a constructive dismissal claim. Personnel Today, p.17. Frederic, R. & Anya P. 2005. Proving Constructive Dismissal: Should One Be Concerned With What Was in the Employer's Mind? Industrial Law Journal, 34(1), pp.96-102. Hardy, S. & Butler, M. 2011. European Employment Laws: A Comparative Guide. London: Spiramus Press Ltd. Harmer, J. 2012. Cartwright wins unfair dismissal case but gets no compensation. Caterer & Hotelkeeper, 202(4736), p.6. Honeyball, S. 2012. Honeyball and Bowers' Textbook on Employment Law. Oxford: Oxford University Press. Knight, K.G., & Latreille, P.L. 2000. Discipline, Dismissals and Complaints to Employment Tribunals. British Journal of Industrial Relations, 38(4), pp.533-555. Knight, K.G., & Latreille, P.L. 2001. Gender effects in British unfair dismissal tribunal hearings. Modern Law Review, 74(1), p.122-134. Lewis, P. 1982. Ten years of unfair dismissal legislation in Great Britain. International Labour Review, 121(6), p.713. Wynn-Evans, C. 2002. Constructive Dismissal, TUPE and Subsidiarity. Industrial Law Journal, 31(3), pp.282-285. Read More