termination of employment

• dismissal
• redundancy
• constructive dismissal
• leaving your job

Contracts of employment will contain a provision, which enables either party to terminate the contract by giving notice. In most contracts that provision will be by way of an express term. Occasionally the contract will be silent on notice and the courts may have to decide whether to imply a term.

In addition there is now a substantial amount of legislation, which gives employees statutory rights, including rights to minimum notice on termination and protection against unfair dismissal.

Thus, in looking at termination of employment, either by dismissal or resignation, there are two legal aspects which must be considered. First whether the termination has been contractually lawful, that is, without a breach of any term in the contract of employment and, secondly, whether the termination contravenes any legislation, i.e. is lawful according to statute.

If there is a contractual breach on termination, whether by the employer or by the employee, say for example, failure to give the required contractual notice, that will be a breach of contract and the offended party may sue. In fact that rarely occurs, although employees sometimes sue in civil courts for wrongful dismissal. They my also take such a case to an employment tribunal.

If a dismissal occurs in contravention of a statutory right the dismissal may be unfair and an employee would be entitled to apply to an employment tribunal claiming unfair dismissal.

This section deals mainly with the law on unfair dismissal.

Unfair dismissal

In law dismissals occur when

• employment is terminated by an employer
• such a dismissal may be with or without notice, the latter being a 'summary dismissal' because of, for example, gross misconduct
• a fixed term contract expires and is not renewed
• an employee leaves with, or without giving notice, and the behaviour of the employer constitutes such a fundamental breach of the contract of employment that the employee is entitled to respond by resigning, i.e. a constructive dismissal.

An unfair dismissal occurs when the reason for the dismissal is not one of the five statutory reasons. In addition tribunals judge the fairness of the dismissal against factors, such as whether the employer acted reasonably and the size and administrative resources of the employer.

There is no longer any requirement to work a minimum number of hours per week to enjoy legal protection against unfair dismissal. All an employee needs to show is that he or she has a twelve months' continuous service with their employer.

This one year's qualifying period is not required for dismissals on grounds of sex, race, sexual orientation, religion or belief, and disability or for any of the following reasons which would make the dismissal automatically unfair.

• membership of or activities connected to an independent trade union
• taking legitimate steps to ensure the observance of health and safety work place requirements
• carrying out the functions of an elected employee representative or candidate for election or taking part in an election.
• carrying out the functions of an occupational pension scheme trustee
• disclosures of wrong doing under the Public Interest Disclosure Act of1998
• due to pregnancy or childbirth
• asserting a statutory right
• refusing to work on a Sunday if working in retail or betting (unless part of your existing contract)
• Seeking entitlements under the National Minimum Wage Act 1998
• The employer’s failure to properly follow the statutory disciplinary procedure

Employees are eligible to apply to an employment tribunal claiming unfair dismissal up to the age of 65, or other normal retirement age applied by the organisation. There is no upper age limit if the reason for the dismissal is related to sex, race, disability or those categories where dismissal would be automatically unfair.