In each edition we will feature a short explanation of a piece of employment law jargon with the aim of highlighting to employers key points to be aware of within the jargon under scrutiny.
This edition focusses on dismissal.
The question of whether or not an employee has been dismissed is a pretty fundamental one, for obvious reasons. It will usually be obvious to both the employer and employee when someone has been dismissed. This is most likely to have been because the employee’s contract of employment has been terminated by the employer – verbally or in writing and with or without notice. This is known as an ‘express dismissal’.
However, there are a number of other circumstances in which the law treats the employer as having dismissed the employee and it is important that employers are aware of these, not least because they may give rise to a claim for unfair dismissal.
In addition to the circumstances of an ‘express dismissal’, a dismissal will be deemed to have occurred when:
the employer gives notice to terminate the employee’s contract of employment and the employee resigns during that notice period, in which case there is still a dismissal but this takes effect when the employee’s notice expires;
- an employee’s limited-term contract expires and is not renewed;
- an employee resigns with or without notice where he is entitled to do so because the employer’s conduct amounts to a breach of a fundamental term of the contract – known as a ”constructive dismissal”;
- an employee resigns with notice and during the notice period the employer terminates the contract before the employee’s notice expires;
- an employer imposes such vastly different terms of employment upon an employee that a tribunal would be justified in finding that there has been a termination of the original employment contract.
As indicated above, there is no requirement for a dismissal to be communicated in writing; dismissal can take effect by way of a verbal exchange and in some cases simply by the actions of the employer.
There will be no dismissal where there is a termination that is genuinely by mutual consent or where there has been a voluntary resignation.
An employee is not dismissed if the contract is ended by frustration. Frustration means that it becomes practically impossible to continue the employment contract, and may, for example, arise in circumstances in which an employee has been subjected to a lengthy term of imprisonment.
Employers should exercise caution in cases in which it considers that the ending of the employment does not amount to a dismissal because an Employment Tribunal will examine carefully the true circumstances of the case. It will consider whether an apparent termination by ‘mutual consent’ really did occur with the full and informed consent of the employee, or indeed whether resignation was truly ‘voluntary’. This will almost certainly not be the case where an employee is given little other choice but to accept vastly different terms of employment, or is forced to resign due to the employer’s imposition of an ultimatum offering only dismissal in the alternative.
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