Keenan and Riches’BUSINESS LAW

Chapter 16Employing labour

There are other points worth noting following the
attempts to reduce the number of applications to tri-
bunals set out in the Employment Act 2002. Section 22
contains a provision allowing awards of costs and ex-
penses against representatives such as lawyers instead
of the parties. This is designed to deal with vexatious
claims or inappropriate behaviour. It could mean that a
representative could not recover his fees from his client
and may have to pay the other party’s costs. The expres-
sion ‘representatives’ does not include those who do not
charge for their services. The section also provides that
if a party has acted unreasonably, the tribunal may order
that party to make a payment to the other in regard to
the time that other has spent in preparing his case (usu-
ally this will be the employer in respect of time spent on
the defence). Under s 24 tribunals have a power to post-
pone the fixing of a time and place for a hearing in order
for the proceedings to be settled through conciliation by
the Advisory, Conciliation and Arbitration Service: the
power of ACAS to conciliate returns after the period for
conciliation set by a tribunal during which time ACAS
has a duty to conciliate.

Dismissal – meaning of

An employee cannot claim unfair dismissal unless there
has first been a dismissal recognised by law. We may
consider the matter under the following headings.

Actual dismissal

This does not normally give rise to problems since most

employees recognise the words of an actual dismissal,

whether given orally or in writing.

A letter setting up a disciplinary meeting appears

in Fig 16.3 and a typical letter of dismissal is set out in

Fig 16.4.

Constructive dismissal

This occurs where it is the employee who leaves the

job but is compelled to do so by the conduct of the

employer. In general terms, the employer’s conduct must

be a fundamental breach so that it can be regarded as

a repudiation of the contract. Thus, if a male employer

were to sexually harass a female employee, then this

would be a fundamental breach entitling her to leave

and sue for her loss on the basis of constructive

dismissal.

It would also occur if the employer unilaterally changed

the terms and conditions of the employment contract as

by unilaterally reducing wages under the contract (see

Rigbyv Ferodo(1987)). Furthermore, the EAT decided

in Whitbread plc (t/a Thresher)v Gullyes(1994) that an

employee who resigned from a management position

because her employer did not give her proper support –

because, among other things, the most experienced staff

were transferred out of her branch without consultation

• was constructively dismissed.

541

Dear Date

I am writing to tell you that ................ [insert organisation name] is considering dismissing OR taking

disciplinary action [insert proposed action] against you.

This action is being considered with regard to the following circumstances:

You are invited to attend a disciplinary meeting in ................ at ................ am/pm which is to be held in

........ where this will be discussed.

You are entitled, if you wish, to be accompanied by another work colleague or your trade union

representative.

Yours sincerely

Signed Manager

Figure 16.3Letter to be sent by the employer, setting out the reasons for the proposed dismissal or
action short of dismissal and arranging the meeting (for statutory procedure)
Source: http://www.acas.org.uk/index.aspx?articleid= 920