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UK Employment Law\ Employer\ Types of employment contract.
Terminating Employment
Dismissal
Dismissal, in this context, comes about after:
- The employee’s contract is terminated with, or without, notice;
- The employee’s fixed-term deal expires without renewal under the same contract;
- The employee terminates the contract with, or without, notice. These can often be blamed on circumstances that the employee feels is reasonable, and is as a direct result of the employer’s behaviour (constructive dismissal).
Note:
- unfair dismissal arises from statutory rights.
- wrongful dismissal arises from contractual rights.
If the reason for terminating employment is the worker’s performance, then the following procedure should be followed:
- Pursue informal action (determine the reasons for poor performance and whether offering counselling can bring about an improvement).
- If there is no improvement, then an employer should hold a disciplinary meeting. The employer should present the reasons and give the employee a few days to shape up. A warning should be issued that if there is no sign of improvement, then a first written warning will be issued. Full notes should be kept of the meeting and copied to the employee.
- If there is no improvement during the allotted time, hold a second meeting. The employer should re-state the complaints and give the employee a chance to explain.
- If there's no satisfactory explanation, issue a first written warning. It should detail the complaint and the actions and timescales in which they can resolve the problem. Once again, full notes should be kept of the meeting and copies of the warning.
- After the time given has elapsed and if there's is still no improvement, issue a final written warning. Once again, record what has happened at the meeting and what targets were set for improvement. Warn that if there is no improvement, dismissal will be considered.
- If the employee still fails to improve and you are contemplating dismissal, statutory discipline and dismissal procedures will apply. These need to be followed carefully: written statement, hearing and appeal.
Termination with, or without, notice.
If the proper notice period, as stated in the contract of employment, is not given, then it is deemed to be an implied term, and that the contract may be terminated with reasonable notice. The exact meaning of this is a grey area and can cause legal argument. Generally, the notice period is reasonable when factors, such as seniority, length of service, age and average salary for the particular profession are taken into account.
Dismissal without notice is considered a breach of contract, leaving an employer open to a claim for damages for wrongful dismissal. There is one major exception - when an employee is accused of gross misconduct.
Pay in lieu.
Sometimes a company may wish to end employment immediately, thereby preventing disruption in the workplace. In these circumstances, an employer should pay a sum in lieu of notice. It is not always clear what the actual amount should be – so seek advice from a solicitor.
Contract expiry
When a fixed-term contract expires, it is not necessary to issue any notice. However, if the contract is not renewed, the employee can claim for redundancy pay, or unfair dismissal. A contract can be extended in a case where a worker continues in the same job after the fixed term runs out. In this case, the contract will continue under implied terms.
Constructive Dismissal
This can be claimed if the employer’s behaviour breaches the contract of employment, by way of harassment for example. The employee is legally entitled to resign immediately and can then launch a tribunal claim for unfair or wrongful dismissal. The employee must be able to prove to a tribunal that the employer’s conduct caused the breach.
If a clear statement is given that the boss intends to cause a breach of an essential term, the employee has legal grounds to leave, claiming constructive dismissal. In such a situation, the employee must leave immediately, or else the employer can say that the breach was not as bad as the employee made out, otherwise they would have gone sooner.
Resignation
An employee must follow the process laid down in the contract of employment to resign. A minimum statutory notice period of one week must be given, but many employers demand a full month. In some circumstances, this can be even longer. If the employee works out the notice period, he or she is fully entitled to all the normal benefits that they would enjoy if they had not issued the notice. The notice should be provided in writing. If no notice is issued, the employee can be deemed to have breached the contract.
Mutual termination of contract
An employment contract can be mutually ended at anytime with both parties agreement. However, if it is proven that the employee was forced into termination after being threatened with dismissal, then it could be deemed to be unfair dismissal. A fee may be permitted to agree to terminate a contract.
A mutual termination allows the employee to leave without serving a period of notice, but the employer does not have to make a payment in lieu of notice either.
Frustration of contract.
This occurs when neither party are to blame for terminating an employment contract, but an external event happens which means that the future operation of the contract is unworkable. In this situation, there is no notice period, and the employment ends automatically.
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