Unfair and Wrongful Dismissal: Law for Managers - Assignment Example

LAW FOR MANAGERS Task 1: Unfair and Wrongful Dismissal: Law for Managers Unfair dismissal refers to the termination of employment by an employer under terms that are in contravention of the Employment Rights Act of 1996. According to the provisions of the Act, the employer must have a fair reason, act reasonably and follow a fair procedure for dismissal (Nairns 2011). When none of the fair reasons provided by the Act has been applied within the termination process, an individual can easily make a claim for unfair dismissal. When these claims are made, the employment tribunal makes the judgement of what could be considered reasonable to the employer. The statutory cap for unfair dismissal is £76,574, awarded for compensation. Wrongful dismissal from employment refers to the termination of employment contrary to the contractual agreements between the employer and the employee. This mainly means premature termination and is also closely associated with the lack of sufficient notice to the employee. Wrongful dismissal remains equivalent to repudiatory breach of an employment contract between an employer and employee. Any form of termination that contravenes the agreement could be considered wrongful terminations. The statutory cap for the wrongful dismissal claims is £ 25,000 for the damages incurred. A claimant can also consider suing for the breach of contract within a county court in order to receive larger amounts of money. a) Football managers are mainly exposed to various risks in their jobs and the termination of their employment can easily occur. The claims for unfair dismissal might not be a likely remedy for any football manager. This would mainly be because they have contractual agreements stipulated in the employment contracts with the football clubs. Managers are likely to receive long period of notice for the termination; hence claims for wrongful dismissal would be better than unfair dismissal. Regarding the compensation, making claims at the employment tribunal limits the amount of money that they can be paid since their salaries are relatively high. It would be better for a football manager to make claims at the county court where they can also launch claims of breach of contract. b) A long serving factory manager does not have much claims regarding wrongful dismissal since they remain less likely to have long periods of notice in relation to termination of employment. The ground for claiming wrongful dismissal for factory managers remains vague and the managers would be advised to consider unfair dismissal. Since the Employment Tribunal normally has a cap for such claims, the factory manager would easily be awarded this amount. Claims of a different from for a factory manager might not yield a lot of money since the evidence might not be available. Task 2: Dismissal Claims Jimmy has the right to make claims for dismissal based on the unfair dismissal from employment. The unfair dismissal claims that can be made by Jimmy would be based on the fact that he underwent a constructive dismissal. This would be because the employer had the intention of terminating the employment without any notice. Although Jimmy resigned from employment, his resignation came because of the action by the employer to terminate his employment without notice and this equates to constructive dismissal. The conduct of the employer that prompted Jimmy to resign could be considered a breach of the contractual agreement; hence he can easily make a claim in the county court and even in the employment tribunal. Jimmy must however make the claims for dismissal within a period of three months from the last day of employment for them to be considered valid by the employment tribunal. Since the dismissal can be easily proved the tribunal will consider the reason for dismissal to establish whether it was potentially fair or automatically unfair. The reason for dismissal was could be identified as performance and attitude towards work. The reason for his resignation was however the demotion from his current post, which is clearly a breach of the employment contract. While the performance has been termed as the reason for the demotions his past performance has been good and there should have been an investigations undertaken to determine the causes of the poor performance by the employee. The investigations that led to the company making the decision like the one made against Jimmy, must include recorded information that should also be provided to the employee. Such claims can be justified in the employee is informed of what he/she is being accused of. Within the context of Jimmy’s case, there was no investigation that was undertaken by the employers to determine the causes. Within an instance when investigations are undertaken, a fair procedure for dismissal would have to be followed. While investigations were not undertaken, the procedure followed by the employer in the case of Jimmy was also not fair and lacked consideration for many aspects of employment. Since the employer did not undertake investigations to determine the causes of the poor performance, the dismissal claims for Jimmy would have a strong base. The reasons that the employer presents including poor performance could be valid if the employer can prove to have conducted a reasonable investigation rather than basing decisions on information gathered from uncorroborated anonymous informants, who could present false information to the employer (Nairns 2011). The lack of investigation would lead to lack of evidence to make an informed and fair decision regarding the performance of the employee. Jimmy has a strong case of constructive dismissal against his employer. Task 3 Jennifer cannot make claims to the employment tribunal for unfair dismissal from employment. There are various factors that could be considered in making such claims and these must be present for the claims to be launched. Unfair dismissal commonly involves a dismissal within which there is no reasonable grounds by the employer to terminate an employee from his/her work. Within the context of the situation that occurred before Jennifer walked away, the actions of the employers were not unreasonable and the employees chose to walk away because of pride and the feeling of humiliation. The actions of the employee to enter into the company premises without notice could amount to gross misconduct, which in itself can be a reason for termination of employment. Despite the employee having attempted to enter into the premises illegally, the company did not take any legal action against the employee. This can be considered to be fair since the employee presented a reason for the intent to go to the premises while it was closed. Despite this reason however, the employee must stick to the regulation and rule of the company and should have followed the right procedure before attempting to enter into the premises (Bennett-Alexander & Hartman 2014). The process through which Jennifer was dismissed from her employment did not have any breaches to the contacts with the employer. Since the employer did not initiate the dismissal, Jennifer cannot make any claims for unfair dismissal as she resigned without notice. She had committed an offence for which the company could have taken a disciplinary action against her. Her resignation occurred before any form of disciplinary action could be undertaken for the offences she had committed. Had investigations been launched against Jennifer for her conduct, the employer could have given her a warning or even a notice for dismissal. There could be various actions that the employer might have taken as discipline for the misconduct, but the employee opted to leave and avoid such problems. This could be considered to be a voluntary resignation by the employee as there was not breach of contract on the side of the employer. A fair process of termination of the contract can be considered to have been followed since the employer provided Jennifer with her tax return forms, which she could present to the next employer. The termination of employment contract occurred out of the free will by Jennifer to opt to leave rather than stay. The resignation can be said to have occurred at the heat of the moment. Jennifer should have waited for the reaction of the employer in order to make a decision about leaving the employment, as she could probably have found a reason through which she might raise a claim for unfair dismissal. Task 4 Jake can make claims for unfair dismissal to the Employment Tribunal following the occurrence of this instant. This would mainly be because the employer failed to provide him with a notice for the termination of employment. Since Jake has worked for more than 2 years at the company, he must be provided with a sufficient notice for termination of employment if the employer has the intention to dismiss him. The lack of notice presents Jake with an opportunity to make claims for unfair dismissal. While the conduct of the employee might have been against the provision of the employer, it is essential for the employer to make a formal communication to the employee regarding the accusations being made upon the employee. The employee must be provided with the reason that indicates the process through which the decision to terminate the employment was reached. Within the contexts of the termination process the employee must be able to understand the reasons that resulted in the dismissal being initiated. Jake was not provided with fundamental reasons for the dismissal. Within the provisions of the law, Jake can also make claims for breach of contract since he was not provided with a notice of termination, neither was there an investigation conducted to determine the misconduct that was claimed. The decision to terminate was reached quickly and without consideration of the basic terms of the contract agreement between the employer and Jake. Jake can make claims for wrongful termination as well since the employer breached the contract that they had. The legal remedy for Jake includes considering both the Employment Tribunal and the county courts as well. Since the employer might not be capable to cope with the conduct of Jake regarding being late for employment, it becomes necessary for the process of termination to be undertaken in a procedural manner. This would include giving the employee warnings before taking actions that could amount to the breach of contractual agreements. Such elements would be able to mitigate the negative effects that come as a result of unfair dismissal claims. The employer must be able to consider the provisions of the contract and review whether the employee has a valid claim and also establish defence in case a claim is launched by the employees. Since the employee has already been terminated, the employer must consider the available defence options including avoiding tribunal hearings that make consideration of the statutory law. In seeking to avoid hearing the employer can opt to make settlement agreement with Jake. This can be able to avert the penalties that the employee might have to pay following a successful unfair dismissal claim by the employee. The financial implication of settlement agreements could be less than those of tribunal hearings, when the employee launches a dismissal claim. Data Protection There are various fundamental rights of individuals that must be protects in regard to the data protection. The revelation of personal information without the consent of the individual can be considered to be a breach of the privacy right by the individuals. Richard can initiate a lawsuit in relation to the breach of the fundamental right to privacy by a private citizen. The provisions of data protections are aimed at ensuring there is protection of the privacy of individuals through failure to reveal data that is considered to be personal information. Any form of information relating to a living individual, who can be identified is considered personal data within the context of data protection act. Personal data that can result in a breach of right to privacy includes information regarding the personal life of the individuals (Davies 2011). These are aspects like race, political affiliation, ethnicity, and religion among many other elements of the social sphere. A consent remains essential whenever personal data is being retrieved and shared within organisations. It becomes essential to determine the reasons for the data sharing in order to establish the presence of a breach of the privacy of an individual. The company cannot transmit and share the personal information regarding Richard without his consent as this could be equal breach of the right to privacy. For the employer to share the personal data about Richard with other organisations, it is essential to gain a consent form Richard. Although the data protection law does not define consent, the consent that should be sought is defined under the common law. This makes is a criminal offence for an organisation of individuals to share other people’s data without registration. The consent to share such information must be obtained from the individuals willingly and the person should not be coerced to allow information to be shared. It is also a criminal offence for anyone to obtain personal information using illegal means, like where there is a lack of consent for the owner. While consent must be acquired about the release of personal information to other organisations, there are exceptions that do to amount to breach of the fundamental rights to privacy. These include national security, crime and domestic purposes. The organisations to which the information is being provided must be operating within the contexts of the exceptions provided by the law regarding data protection. Should the information be shared for other purposes other than the exceptions provided, the organisation will be liable for a breach of the right to privacy. The employer must be able to protect the personal data of employee at all times in order to ensure that their right to privacy is assured, otherwise the employee can initiate legal procedures for damages. References Bennett-Alexander, D. & Hartman, L., 2014. Employment Law for Business 8th ed., New York: McGraw-Hill Education. Davies, A., 2011. Workplace Law Handbook 2011: Employment Law and Human Resources, Cambridge: Workplace Law Group. Nairns, J., 2011. Employment Law for Business Students 4th ed., New York: Pearson Longman.  Read More