Essay question

Identify the different remedies and protections for workers that are available through actions of unfair and wrongful dismissal. In your opinion, was statutory intervention, in the form of unfair dismissal, necessary to ensure workers had adequate remedies when dismissed? Justify your answer with reference to case law examples.

Answer:

•   There is limited protection for workers based on their contracts of employment. In most cases, employers will establish the contract which the worker either accepts or declines - there is an imbalance of power relationship. The contract can state notice periods, reasons for dismissal etc that would disadvantage the worker (under freedom of contract).

•   As such, statutory protection was enacted as a bare minimum of governance of the employment relationship. There is a significant difference in the remedies between unfair and wrongful dismissal:

•   Unfair dismissal - the three remedies available are reinstatement; re-engagement; and compensation (ERA 1996 s. 112).

•   The remedies available for wrongful dismissal are damages (there is no upper limit). They attempt to place the injured party in the position they would have been had the contract not been breached. Exceptionally, the courts may award an injunction, particularly where this will prevent a dismissal that attempts to circumvent a statutory right (Irani v South West Hampshire Health Authority).

•   Where the contract does not provide notice periods, the ERA 1996 s. 86 provides for a statutory minimum of one weeks’ notice for every year that is worked - to a maximum of 12 weeks’ notice.

•   In a fixed term contract with no early termination clause, the damages that may be claimed is the balance of the contract (Addis v Gramophone Co Ltd).

•   Payments in lieu of notice are only permitted if expressly permitted in the contract (Morrish v NTL Group).

Statute provides protection against dismissals on the basis of discrimination or for enforcing statutory rights etc. As such, whilst the value of wrongful dismissal claims may be higher than those for unfair dismissal, unfair dismissal provides a greater degree of protection.