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Employees play an essential role in the case of every organization. Without the help of the employees, a company cannot move forward. According to many authors to accomplish the goals have set out by a company, the active cooperation of the employees is necessary. Every organization needs to create an industrious and satisfactory working environment, and it can be achieved only when an effective relationship will exist between the employer and employee. The legal connection between employers and employees is termed as an employment relationship. This relationship usually takes place when an individual implements any work or provides amenities under several circumstances to get salary. This point is critical to determine the basic features and range of rights and responsibilities of employers towards employees. For determining the existence of an employer-employee relationship, the following items are taking into consideration, such as:
The Employment Rights Act, 1996 derived mainly from Acts of Parliament and various sets of Rules made by the government. It usually discusses the fundamental rights awarded to the employees including right to get reasonable notice prior fair elimination, leave policies, training and most importantly, protection against unfair dismissal and sacking. Under the Employment law of the UK, two terms are prevalent, such as unfair dismissal and wrongful dismissal. The significant distinction between these two terms is that unfair dismissal is a creature of statutes, namely, the Employment Rights Act, 1996. In contrast, wrongful termination is a violation of contract assertion which originates from the Common law. However, these two assertions will repeatedly be followed in parallel, but there exist significant differences between them. As the basis of employer and employee relationship is contractual. Therefore it contains a human component as well as the principle of service. An employee can claim compensation both for wrongful and unfair dismissal. This paper mainly focuses on whether an organization provides any adequate protection in case of unfair cessation of employment. As the common law says that unjust dismissal only provides defense against the technical violation of contract, so in both unjust and illegal cases, the indispensable managerial prerogatives are not concerned by these types of action. Apart from that, it also critically discusses the scope of protection accessible to the employees in case of unlawful removal from office of employment.
In the UK, an unfair dismissal takes place when an employee gets terminated from his employment by the employer on such grounds which are prejudiced, or unlawful or unreasonable. The Employment Rights Act 1996 regulates the unfair removal of an employee by stating that, on the basis of their ability to do the work, their behavior, whether their situation is economically jobless, employees are eligible to get a rational reason before being terminated based on a statute, or certain other considerable reason. According to Marinescu (2009), it is inherently unethical for an employer to fire an employee, irrespective of interval of service, to become pregnant or to have previously claimed such defined rights of employment. Otherwise, there must have been two years of work for an employee. It ensures that an employer will merely legally dismiss the work of a worker if the employer follows a just policy, behaves fairly and has a reasonable reason. Employees belong to England and Wales are lawfully secured from unfair dismissal, and if there are reasons to believe that they have been unethically terminated, they can create a petition to the Employment Tribunal. It has the authority to judge the rationality of the assessment of the employer regarding the discharge of an employee based on “band of rational responses” determining whether the assessment of the employer fell outside the spectrum of rational replies of sensible employers or not (Foley vs. Post Office [2000] ICR 1283, IRLR 827).
However, in case of an unfair dismissal no notice was needed but some reasons were stated as the only ones available in the contract but none existed. Unjust removal from office does not mean termination of the contractual agreement. It is basically a denial of repudiation. The repudiate violation of the employer causes the worker to acknowledge it as he is prohibited from receiving from the employer and forced to compensate by functioning for someone else, thus ending the contract. Unjust removal from office does not terminate the arrangement; it is a denial of repudiation. The repudiate violation of the employer causes the worker to acknowledge it as he is prohibited from receiving from the employer and forced to compensate by functioning for anyone else, thus ending the contract (Boyo vs. Lambeth Borough Council [1994] ICR 727). It does not obey contract law and is an development by judges, hated by others, intended to imitate the fact of employment, using the twofold narratives that since the right to remunerations depends on the responsibility to work, there exists no right to remunerations if the employer directs the worker not to work and that the worker acknowledged the denial by not functioning for the employer however he is enthusiastic and capable (Gunton vs. Richmond upon Thames LBC [1980] ICR 755). Otherwise the employee would have the right to stay as a creditor at home at the will of the employer and yet sue for unpaid remunerations as a due.
According to Ewing and Hendy (2012), it is important to make a distinction between the unlawful dismissal and remedy under the common law for unjust removal from office. The second one is a remedy under civil law based on violation of the employment agreement. From the viewpoint of the employee, there are major flaws in this exemption at civil law as a solution. Since an employer is usually permitted to terminate under the expressions of the contract by providing the correct notice period as specified by the contract, compensations will often be inadequate to cost of incomes throughout that time. Through the means of restoration, civil law does not be responsible for a resolving. There is no redress available on the basis of violation of contract for let-down to monitor proper complaint and penal provisions before removing. Unfair removal from office is a completely separate term, which is initially presented by the Industrial Relations Act, 1971. Presently, Section 94 of the Employment Rights Act, 1990 now delivers several remedies which are discussed below.
It is the basis of the redress that can now be sought in the Employment Court, but as a definition it is not helpful. In W Devis & Sons Ltd v Atkins [1977] A.C. 931, it was stated by the court that unfair dismissal as a form of words loosely and to some degree arbitrarily specified that could be deduced as equal to removal from office ‘conflicting to the law’. It illustrates the point that the law of discriminating removal from office is essentially a statute phenomenon and as such is much more heavily categorized than the civil redress. Since the redress for unfair removal from office and the lawful mechanism by which it is granted were born in an age of turmoil in business relationships, it is feasibly surprising that the stability between the worker’s right not to have his job dismissed without cause and the employer’s interests in recruiting, controlling and firing workers is often extremely political. There is considerable debate as to whether workers are adequately protected or, on the other hand, whether the employer is currently so affected by bureaucratic criteria and punishments for their violation that the recruitment and firing of workers has come to an end to be competent to reply openly to the advantages or disadvantages of the separable worker and the necessity to manage the labor force in the benefits of the party.
The first one is obviously the easiest, but it is not free from its specific complications. Instructions which may seem unambiguous to the novice will not automatically be regarded as a dismissal by either the Employment Court or the Employment Appeal Tribunal. Therefore, a foreman on Hull Docks gave slang to a worker regarding job in Futty v D & D Brekkes Ltd [1974] IRLR 130. The appropriate authority held that this slang should be viewed in the context of Hull Dock’s normal modes of speech and should not be treated as a removal. On the other hand, a removal from office may be observed even though the cessation of jobs is not represented in this way:
Whereas, in Robertson v Securicor Transport Ltd [1972], the plaintiff had violated the law of the company by signing for a shipment that had not been issued. The choice of resigning or being fired was given to him. He chose letter of resignation, but it was considered a dismissal in practice.
The second type of dismissal is uncommon by contrast, which happens when the employee is working for a limited period under a contract, dismissal happens when that tenure finishes without being prolonged under the same contract. Nonetheless, in these cases, it is important to determine the reasonableness of the conduct of the employer in not renovating the agreement. If there exist particular conditions that give rise to an agreement of fixed-term, such as temporary work or jobs for a specific purpose that has ended, it may be fair not to renovate the contract upon expiration. Prevention of Less Favorable Treatment Regulations, 2002, provides security for workers in fixed-term agreements such as higher education teachers and senior staff in the wellbeing service.
In practice, the third type of dismissal, namely, constructive dismissal can habitually be the hardest to describe. Section 95(1)(c) of ERA, 1996, specifies that a termination would amount to a removal from office if the worker dismisses the contractual agreement under which the employee is working in cases where the employer is permitted to dismiss the contract without warning. This is a however circular description, but a reference to the infamous case of Western Excavating (ECC) v Sharp [1978] ICR 221 explained the application of the rule of constructive removal from office.
As part of the corrective proceedings, an employee was suspended without pay. As a result, he became short of cash and demanded a loan from his employer. When the employer refused to grant the loan he resigned to take advantage of the accrued vacation pay. Surprisingly, the court as well as the EAT considered this to be an event of constructive removal from office. Nevertheless, the plaintiff lost on additional plea when Lord Denning ruled that the conduct of the employer had to amount to a substantial violation of the service contract.
It has been maintained, however, that there is an objective test to some degree. It was proposed in British Leyland (UK) Ltd v Swift [1981] IRLR 91 that the question to be asked is: “Is it probable that a fair employer would have dismissed in the face of these facts”? Likewise, the EAT recommended in Haddon v Van den Bergh Foods Ltd that the court determine whether the employer represented rationally in imposing the final removal penalty. Nevertheless, it was not enough for the court to merely ask what they would have completed without knowing that their individual opinions might not be fair.
Nonetheless, it must be noted that Section 34 of EA 2002, introduced a novel Section 98A into ERA 1996, which states that the violation of a prescribed sacking rule by the employer, which sets the least technical conditions, ensures that the dismissal is inherently unjust in any situation. Thus, reasonable is therefore equated with fair and will be a matter of fact to be decided by a tribunal based on the knowledge and common sense of its chosen members from a diverse cross-section of the working environment. It has been maintained, however, that an objective test exists to some degree. It was proposed in British Leyland (UK) Ltd v Swift [1978] ICR 221 that the question to be asked is: is it probable that a fair employer would have dismissed in the face of these facts? Likewise, the EAT recommended in Haddon v Van den Bergh Foods Ltd [1999] case that the court determine whether the employer performed rationally in imposing the final release penalty. Nevertheless, it was not enough for the court to merely ask what they would have done without knowing that their personal observations might not be fair.
As noted above, the current Section 98A ERA 1996, which entered into force on 1st October 2004, arbitrarily violates some basic procedural standards. Schedule 2 of the 2002 Act and the Dispute Resolution Regulations, 2004 provide for a regular administrative process and an amended one equally. The standard practice applies by reg 3(1) DDR 2004, where the employer contemplates correcting or taking proper corrective action against a worker and delivers:
The revised rule of reg 3(2) is applicable where the employer suspects that an act of gross misconduct has been committed by the employee. The employer should, in these cases, summarily dismiss the employee but must state his explanations before doing so in writing and notify him of the right to plea. The method is identical afterwards. In order to relate this rule, the employer should be permitted to fire the worker for gross misbehavior at the moment the employer is conscious about it or directly afterwards and it must be fair for the employer to terminate the worker before reviewing the circumstances in which the conduct occurred. Such proposed regulatory protocols are entirely rational and are probable to do little more than represent the best practices in place in many industries even before the rules are enforced. Nonetheless, what are relevant are the compulsory and likely Draconian penalties that were levied in the occasion of non-compliance. Where the applicable corrective processes have not been met, the removal from office would spontaneously be considered unjust. However, Section 31(3) of EA, 2002 provides that, in such cases, the court will maximize the reward to the worker by 10% and may increase the award by an additional amount if it finds it fair and reasonable in all situations, but not to increase the overall increase by more than 50%. There is, as yet, no evidence as to how widespread such penalties will become in practice, however it is argued that such policies and approvals are capable of imposing great unfairness on an employer.
It will be prominent from above that, by position to the size and structural wealth of the undertaking of the employer, the equality test set out in Section 98(4) ERA 1996 is eligible. This is proposed as a useful and accurate method to the authenticities of the place of work: it is not fair to criticize the achievement of a small family running an engineering company in the Black Country against the ICI principles. Nonetheless, the novel processes do just that. In either determining the objectivity of the method taken for disciplining or firing an employee, a tribunal is left with no discretion: an otherwise justified dismissal is automatically made unjust for procedural irregularities. The same applies to some degree to the scale of the award raise to be applied. Admittedly, on the basis of what is fair and equitable, there is some flexibility as to whether the growth is 10% or 50% or some point in the middle, but there must be a growth. It will also have a excessively disciplinary consequence on small trades that are usually already capable of affording the essential and compensatory essentials of the regular tribunal reward and for which the effect of the compulsory growth will be comparatively more.
Clearly, encouraging good practice with regard to the determination of grievances in the place of work is wise, but it may be interrogated whether it is essential to provide such reassurance to the force of law and stay non-observance of such formalities with the following consequences. A grievance in regs is established. 2(1) and 6 of the DDR 2004 as a complaint lodged by a worker about an act of his employer has taken or intends to take related to him and which could form the origin of an objection lodged by a worker before an employment tribunal. The concepts core grievance procedures would seem conversant by analogy to corrective measures, but there are certain variations in that they levy conditions for acceptability which, in accumulation to imposing punishments, will prohibit a court from trial such grievances till the official procedure have been met.
There is once again a standard and a changed process. The employee must file the claim in writing under the standard procedure and refer it to the boss. The employer needs to invite then the worker to a conference to converse the grievance that will not occur unless the employer is aware of the complaint and has had a chance to contemplate his response.
Nevertheless, Section 32 ERA 1996 states that if the employee fails to follow the specified protocol, he will be prohibited from making a lawsuit for, inter alia, discriminating removal from office until the measures have been adhered to or are found to have been adhered to.
As noted in the above description, the employee has significant drawbacks when bringing a civil action for unjust removal from office as contrasting to an unfair dismissal appeal to the court. This is because a claim for compensations based on the damage caused by the employer’s violation of the employment contract will be the primary recourse for unfair dismissal. A firing without warning or with insufficient notice will therefore establish an unjust removal from office until the employer has replied to a severe violation of the employee’s contract. The terms and conditions of the contract will dictate what extents to an appropriate notice.
Though section 86 of ERA 1996, provided the statutory minimum time which specify duration extending from an allowance to one week accruing after one month of service to 12 weeks after 12 years of service. It is important to keep in mind that, however, this is the ceiling number and further time period of service do not increase to additional entitlement periods. There is certainly a significant appeal from the viewpoint of the employer to base the right to dismissal on contractual contemplations.
In Dietmann v Brent London Borough Council [1987] ICR 737, it was stated by the court that an employer will have to stick to the expressions set out in the contractual agreement even in the case of obvious wrongdoing if the contracts clearly state what needs to happen prior a removal from office can take place.
The House of Lords accepted damages on the grounds of injury of reputation in Malik and Mahmud v Bank of Credit and Commerce International [1997] UKHL 23 (in forced liquidation).
In Barber v Somerset County Council [2004] UKHL 13 a teacher due to immense work pressure underwent a mental breakdown and brought an entitlement against his employer for personal damage. The House of Lords held that the employers failed to fulfill their care obligation. This was deemed a common positive responsibility and not one that occurred merely where the worker was perceived to be especially helpless. Therefore, if it is fair to predict the harm to the mental wellbeing of the employee, the employer may be held liable for damages.
Therefore, from the above discussion it can be concluded that, it is not realistic to assume that the entire exhibition of employment protection that has been put in habitation since 1971 will ever be abolished; there is truth in the argument that the worker’s rights system against employer has now been expanded excessively far.
Recognition that the prior approach of common law to awarding compensations in cases of unfair dismissal on the basis of stringent enforcement of contract rules was inadequate to safeguard the plaintiff from the employer’s superficial power was certainly right and respectable, but as a result the scales were tipped too far for the employer’s advantage. While the main argument put forth above is that the employer has been placed under excessive pressure – most newly as an outcome of the disciplinary implications of non-compliance with the legitimate penal process, it should not be ignored that the utmost current round of regulation to govern workplace conduct is also effective.
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