Dismissal and
Redundancy
Dr Katarzyna Gromek-Broc
Dismissal and Redundancy
Themes
 How far should the law go to control
managerial discretion?

How effective is the law to control
managerial discretion over
dismissals?
Reasons to introduce the statutory
right not to be unfairly dismissed
ILO Convention 119 of 1963 on Termination of
Employment
an employer should not dismiss an employee without
valid reason and sufficient cause, and without the
dismissed employee having a right to have recourse to
an independent tribunal to determine the issue and
decide an appropriate remedy
 Royal Commission on Trade Unions and
Employers’ Associations (Donovan) 1968
para 528: ‘In 1964-66 some 276 unofficial strikes took
place each year on average as a result of disputes
about whether individuals should or should not be
employed, suspended or dismissed ...
para 529: ‘For these reasons we believe it urgently
necessary for workers to be given better protection
against unfair dismissal.’

Termination in Common Law
Variation of employment contract
 Contract may allow to change
 The parties may agree to vary the contract
 Collective agreement may alter existing
terms
 Contract may be brought to its end
(doctrine of frustration)
 Employer may vary - breach of contract?
Wrongful dismissal



occurs when an employer dismisses an
employee without notice, or with
insufficient notice
it will not be wrongful dismissal if an
employer dismisses for a completely
arbitrary or malicious reason - the
employer does not need a reason for
dismissal, provided adequate notice is
given
an employer can dismiss without notice if
he has good cause - this is known as
summary dismissal, eg for gross
misconduct
Comparison of wrongful
dismissal and unfair dismissal

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Wrongful Dismissal
Basis: common law
Time limit: 6 years
Coverage: all
employees
An employer can
dismiss for any reason
provided that notice is
given
Remedy: damage
limited to the net
salary for the notice
period: Tribunals: up

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
Unfair dismissal
Basis, statute ERA
1996
Time limit: 3months
Coverage: only
employees meeting
the qualifying period
of 1 year
A dismissal is only fair
if the employer can
show that the decision
to dismiss was
reasonable
Remedy: £ 72.000
Can the common law be used to
protect job security?
Automatic theory of contractual termination
Sanders v. Ernest A Neale [1974] IRLR 236 NIRC
Robert Cort & Son Ltd v. Charman [1981] IRLR 437
EAT (effective date of termination is the date of
the dismissal)
R v. Lord Chancellor’s Department, ex parte Nangle
[1991] IRLR 343 High Court
 Elective theory of contractual termination
 Gunton v. Richmond-upon-Thames LBC [1980]
ICR 755 CA
 Boyo v. Lambeth London Borough Council [1995]
IRLR 30 CA

THE AIMS OF THE UNFAIR
DISMISSAL / REDUNDANCY
LAW

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the protection of fundamental human
rights
the protection of property rights in
jobs
the promotion of labour market
flexibility
the enhancement of managerial
efficiency