366 Chapter 13Employment (1): The contract of employment, employment rights and dismissal
increase any award to an employee by up to 25 per cent if it appears to the tribunal that the
employer has unreasonably failed to comply with the Code. A corresponding power to
reduce the award by up to 25 per cent exists where it is the employee who has unreason-
ably failed to comply with the Code.Unfair and wrongful dismissal
A dismissed employee may be able to sue the employer for either unfair or wrongful
dismissal. These are quite separate matters.
Unfair dismissal is a statutory remedy which gives the dismissed employee a right to a
fixed payment.
An employee who sues for wrongful dismissal is simply suing for breach of contract. All
contracts of employment give the employee an entitlement to a certain amount of notice
after one month in the job. If an employee is wrongfully dismissed, without having been
given this notice, the contract will have been breached and the employee will therefore be
entitled to damages. In theory, an employer could sue an employee who left the employ-
ment without giving the required amount of notice but in practice this hardly ever happens.Unfair dismissal
Figure 13.2 shows an overview of unfair dismissal.Who can claim?
Section 94(1) of the Employment Rights Act 1996 gives an employee who has at least one
year’s continuous employment the right not to be unfairly dismissed. Section 212(1) ERA
1996 defines the weeks which count towards continuous employment:
Any week during the whole or part of which an employee’s relations with his employer are gov-
erned by a contract of employment counts in computing the employee’s period of employment.
What is important then is not the kind of work done, but merely whether the employee
continuously worked for an employer. It should be noticed that only employees are
entitled to claim unfair dismissal. Independent contractors cannot claim unfair dismissal.
(In Chapter 9 we examined the ways in which the courts distinguish between employees
and independent contractors.) Employees who are over the age of 65 can now claim unfair
dismissal. However, they cannot do so if the employer has a normal retirement age of at
least 65, and the employee is notified of the date of retirement. If an employer has a normal
retirement age which is under 65, and can justify this as a proportionate way of achieving a
legitimate aim, then an employee retired at that age cannot claim unfair dismissal if he was
given notice of this retirement date in the proper way.
Section 212(3) ERA 1996 allows a week to count towards continuous employment, up
to a maximum of 26 weeks, even if the employee was absent due to illness, or a temporary
cessation of work, or absent by arrangement or custom. Weeks lost through industrial
action do not break the continuity of employment, although they do not count as weeks
of continuous employment either (s. 216 ERA 1996). If a business is taken over by a new
employer as a going concern, weeks worked for the old employer count as weeks worked
for the new employer (s. 218 ERA 1996).