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February 2013 Employment Law Newsletter

13-02-2013

If you would like to discuss any employment issues please contact Julie Taylor on 01635 508181

 1.    More Employment law reforms announced

The Government’s plans are:

2.    Remember to communicate!

The Supreme Court has determined that an employee’s contract continued until his employer actually expressly told him that it was terminating his employment by making a payment in lieu of notice under the contract.

This case reviewed the long-standing question regarding the effect of a breach of contract that is serious enough to permit the other party to treat the contract as at an end and sue for compensation. The key question was whether the serious breach of contract automatically ends the contract or whether the other party has to accept the breach before the contract is brought to an end. The Court confirmed that a contract of employment only ends if and when the innocent party (the employee here) elects to accept the repudiation (or serious breach).

In this case, the transfer of a payment in lieu of notice to the employee’s bank account was not enough in its own right to end the employment contract. This is because an employment relationship requires clear and unambiguous notification that the right to end the contract is being exercised, and when it is intended to be effective.

This means that a serious breach of an employment contract does not automatically bring the contract to an end and the other party has a choice whether or not to accept the breach and terminate the contract.

THEREFORE, employers who want to make a payment in lieu of notice should clearly inform the employee (preferably in writing) that they are exercising the contractual right to terminate the contract immediately by making such a payment. Specific legal advice should be sought where an employee complains that there has been a breach of their contract of employment.

3.    Harassment & Reasonableness REVISTED

What seems like many years ago, not just four months, I brought you news of a interesting decision regarding the dismissal of a religious harassment claim, see October update here. Well, the employee appealed to the employment appeal tribunal who have upheld the decision of the original tribunal agreeing that while the conduct was unwanted, it was not done with the purposed of creating an adverse and intimidating environment. Again, the context was considered determinative.

4.    Procedural failures  =  CONSTRUCTIVE DISMISSAL

In this case, the employer had first called the employee to a investigation meeting without notice to discuss a grievance raised against her and the employer had failed to provide her with documents setting out the grievance prior to the meeting or afterwards. When the employee herself later raised a grievance, the employer completely failed to address this in a timely manner.  Therefore, the Employment Appeal Tribunal found that the first tribunal was entitled to make a finding of unfair constructive dismissal by looking at the overall picture and finding that the employer had breached the implied contractual term of mutual trust and confidence.

This case is a reminder of the importance of following grievance and disciplinary procedures and acting fairly. Attention must always be given to internal Policies & Procedures as well as to the ACAS Code.

5.    A reminder of the February tribunal award increases effective from 1 February 2013 for dismissals after that date:

Please note that these comments are intended to summarise some of the employment issues of the moment, not to provide detailed legal advice, so if you need assistance with any employment issues you may have please contact Julie Taylor on: 01635 508181 or  [email protected]
Follow Julie on Twitter: @JulieT_GL


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