The Unfair Dismissal - Report Example

Portsmouth of Word Count 805 Introduction The law of unfair dismissal ensures that employees are dismissed if an employer has a valid reason and act in a reasonable manner in the dismissal process1. Unfair dismissal is governed by the Employment Rights Act 19962. Unfair dismissal includes wrongful dismissal which involves the breach of employment contract, discrimination and constructive dismissal which is an implied form of dismissal3. A fair dismissal include reasons like: 1. Redundancy 2. Employee misconduct 3. Employee lack of competence 4. Retirement or attainment of maximum legal age 5. A statutory duty to close employees job vacancy 6. Other relevant issues4 One of the ways to remove an employee who has been dismissed is through a garden leave. A garden leave “... involves giving an employee no work to perform during his or her notice period and directing him or her not to come to work”5. During a garden leave, the employee is bound under the previous employment contract including not working for another employer and to seek the employers best interest6. Case Under Review In this paper, we examine the case of Clarissa, who possesses exceptional technical skills in the testing of some ammunition like missiles. She has an employment contract with Precisions Missiles Plc. The contract can be terminated by employer or employee after a six month notice. Clarissa knows some crucial trade secrets that are crucial for Precision Missiles Plcs sales to foreign governments. In 2011, after going through a divorce, she encountered some emotional and mental changes which affected her work. She was involved in two major events that were detrimental to Precision Missiles Plc. In the first one, a major display to major clients was called off. She was spoken to and improved her services briefly. However, in the second event, she set the missiles of a test wrongly which could have proven fatal if care was not taken. On 30th November, 2011, she was given notice of her dismissal due to the possibility of committing future errors that could prove costly. Due to the clause which requires a six month notice prior to quitting, she was to remain an employee for another six months. However, citing the safety of her colleagues, the management of Precision Missiles sent Clarissa home for a garden leave that would lapse on the 31st of May, 2012. Although Clarissa wants her job back, her protests fail. She is however offered a job by a rival company, Flare Missiles on the 1st of January and was to resume work on the 1st of February. However, it appears that the garden leave forbids her to take this job although she wants to work. In this paper, we examine three major issues: 1. Whether Clarissa can pursue to claim for unfair dismissal or not 2. Whether she can accept the job offer by Flair Missiles or not and 3. The consequences of her acceptance of Flair Missiles job offer at a time when she is on a garden leave. Claim for Unfair Dismissal The issue here is whether the dismissal of Clarissa was for a fair reason. Secondly, we need to examine whether the procedure used for her dismissal was fair or not. Rules In the case of Polkey v. Dayton Services7 it was established that there are three main ways that a fair dismissal could occur: incapability, misconduct and redundancy. In the case of incapability, the following assumption is made: “... the employer will normally not act reasonably unless he gives the employee fair warning and an opportunity to mend his ways and show that he can do the job”8 Incompetence is judged on the basis of seriousness and sufficient warning. However, if there is no heed, then disciplinary action can be taken. In taking disciplinary action, there is the need for every work place to adhere to the ACAS Code of Practice9 which states amongst other things that employers and employees must have fair procedures and systems for dealing with disciplinary action and grievances at the workplace. The code stipulates that there should be fair hearing, formal and documented procedures and the establishment of facts before disciplinary actions are taken. Employees must be informed in meetings and they can seek representation. Action can only be taken after hearing the employee and the employee can appeal against action. Application Clarissas two mistakes are extremely serious. In the first instance, her error caused major customers representing governments around the world to have the display rescheduled. This could potentially cause them to lose faith in the company and this could significantly affect profits and potentially affect the survival of Precision Missiles Plc. In the second case, her mistake could have led to extensive damage which could have led to a lawsuit against Precision Missiles at best and fatal consequences and the destruction of properties in the most extreme sense imaginable. This therefore shows that the two major errors are serious and renders her incompetent and potentially incapable. However, judging by the magnitude of her first error and the fact that she got just an informal warning and sympathy from her supervisor. This was not sufficient warning that could warrant her dismissal on a second occasion. The warning was not documented and her effort to remain productive after the incident means that she heeded to this informal warning. The recurrence of this situation does not seem to be sufficient to warrant her dismissal. From labour law, the second instance warranted a documented or strong warning In the case of her dismissal, there was no formal hearing that was done. Secondly, the hearing was not documented and she did not have access to any form of representation. Also, all other disciplinary outlets were not exhausted. Additionally, Clarissa was not given any right to appeal. Her attempts to request to keep her job was not taken seriously. And it is not clear if the outright dismissal was in line with past disciplinary measures. Conclusion Although Clarissa’s errors were serious and potentially damaging, the procedure used to dismiss her was not sufficiently fair. She can therefore take action against unfair dismissal. Acceptance of Flairs Job Offer Now that Clarissa is on garden leave, can she accept the job offer of Flair Plc which has offered her a job which she must commence in the middle of her leave? Rules A garden leave keeps an employee from the office during the notice period but the employers continue to pay the wages and benefits of the employee10 In Evening Standard V Henderson11, Henderson was employed by Evening Standard and in the contract, he was to provide a 1 year notice before termination of contract. During that year, he was not to work for any outsider. However, he was offered a position by a competitor with ten months to the end of the notice period. Evening Standard agreed to pay her for 10 months so they requested for an injunction to prevent him from taking employment with their competitors. The injunction was upheld In William-Hill V Tucker12 a court refused to grant an injunction restraining an employee whose employers attempted to restrain him from working because he was granted a garden leave. This was because the employer was obliged to provide work for the employee asked to proceed on leave. On appeal, it was held that the employer had no obligation to provide work for the employee. However, the judge recognized that in circumstances where employees duties are specific or unique and skills required to discharge the duty must be exercised frequently, employers are obliged to provide work. This therefore means that the garden leave concept operates on reasonableness. It is however established that the fundamental essence of the garden leave concept is to prevent employees from working for competitors when they are in such conditions. This is established in Symbian V Christensen13 where the garden leave concept was presented as a principle that worked like the law on restraint of trade. Application Precision Missiles can place a restriction on Clarissa because she has a six months notice period prior termination of her employment contract. Due to this, Precision Missiles can as her to go on garden leave, pay her and keep her out of work. This culminates in the fact Clarissa cannot work for the competitors of Precision Missiles because the garden leave concept prevents a person from working for a competitor. This means that Clarissa cannot take the job offered by Flair Missiles. However, since Clarissas job is an exceptional one, she can bring up a case against Precision Missiles because her job is one that needs constant practice due to the accuracy required. She can therefore argue that she has the right to work or lose her skills. This will mean that Precision Missiles will either have to keep her employed for the next six months or the restraining order will not be binding. Conclusion The garden leave prevents Clarissa from working for Flair Missiles. However, due to the exceptional nature of her work, she can argue on the fact that her profession is an exceptional one which requires constant practice. This will ensure that the restriction preventing her from working for Flair Missiles will either be lifted or she would get her job with Precision Missiles back. Working for Flair Missiles This section examines the implications of going to work for Flair Missiles without the legal elimination of the garden leave on Clarissa. Rules Four main limitations apply when a person is on garden leave14: 1. There is no right to employment if there is reason to suspect that the employee will not work faithfully. 2. The person cannot do any profitable work 3. There is a breach if the employee signs up with a rival. In SG&R Valuation Service Co LLC v Boudrais15 it was held that employer can take up appropriate disciplinary measures (neutralisation). 4. When employee on garden leave takes up employment with competitor, the original employer may refuse to accept resignation and this will mean potential legal consequences for competitor as per Standard Life Healthcare V Gorman16 Application In this situation, the garden leave against Clarissa is enforceable because Precision Missiles have cause to believe that she cannot remain faithful to them. This is reflected by the fact that they declared they have no confidence in her. With this, she cannot do any profitable work for outsiders. There will be a breach which will result in disciplinary actions against her if she signs up for Flair Missiles. Also, Precision Missiles can refuse to accept her resignation and Flair Missiles will incur damages if they go ahead to employ her. Conclusion Clarissa cannot take up employment with Flair Missiles as long as she is on garden leave. Endnotes Barry Hough. Contract & Employment Law Lecture Notes Accessed: 8th January, 2012 ACAS Code of Practice. Code of Conduct Accessed: 8th January, 2012 Dawn Oliver. Common Values & Public-Private Divide (1 Edn Cambridge University Press) 133 Hor Joydeep & Keats Louise. Managing Termination of Employment: A Fair Work Act Guide (2nd Edn, CCH Ltd) 154 John Layton. UK Employment Law: Unfair Dismissal Accessed: 8th January, 2012. John Layton. UK Employment Law: Garden Leave Accessed: 8th January, 2012. Jonathan Revid. Working for Yourself: An Entrepreneurs Guide to the Basics (2nd Edn, Kogan Page) 254 Cases Cited Evening Standard Co. Ltd. v Henderson [1987] ICR 588 William-Hill Organisation Ltd. v. Tucker [1998] IRLR 313 CA Standard Health Care Ltd v Gorman [2010] IRLR 233 CA Symbian Ltd v Christensen [2001] IRLR 77 CA SG&R Valuation Service Co LLC v Boudrais [2008] IRLR 770 Read More