Free Law Dissertations - 1.dougal’s Potential Unfair Dismissal Claim Dougal May Have A Claim For
1.Dougal’s Potential Unfair Dismissal Claim
Dougal may have a claim for unfair dismissal. It is important to note that compensation is not the only remedy available and reinstatement is an option. It will become clear why this is important. The first stage to consider in considering a claim is to consider whether or not Dougal is an employee, Section 94 of the Employment Rights Act 1996 states that an employee has the right not to be unfairly dismissed by his employer.On the information that is available to us we will assume that se is an employee as we have been told that she is an employee.
The second stage that must be considered is whether or not the employee is qualified to claim. The starting point is the phrase the effective date of termination. Section 97 of the ERA provides that this means that where there is no notice this will be the date when termination takes effect. Dougal must show that from the effective date of termination that she has been employed continuously for at least one year. We are told that Florence has been employed continuously for seven years and therefore qualifies.
The next stage is for Florence to show that she has been dismissed. The occasions where an employee will be considered to be dismissed are set out in section 95 of the ERA.
A variation to the contract of employment generally needs the consent of both parties and therefore an employer cannot unilaterally vary a contract. Although a failure to agree to a variation may, in some situations, give the employer grounds for fairly dismissing the employee. Also an employer may reserve the power in the contract itself to change the contract. However Woolf MR has held that clear language is needed to reserve this sort of power and that the court is unlikely to favour variation which does more than enable a party to vary contractual provisions with which that party is required to comply. The effect of this is that a power to vary provisions to the disadvantage of the employee is unlikely to be accepted unless, at the very least, it is very clearly conferred by the contract.
In a case with very similar facts a full time teacher returned to work following an illness and received a letter from the headmaster offering him teaching on a part-time basis with a reduced salary. He responded by lodging a claim for unfair dismissal while continuing to work under the new arrangement, making It velar that there was doing do under protest. The tribunal found that he was not dismissed. However the EAT overturned this ruling and confirmed that the unilateral change in terms constituted a termination of the appellant’s contract, as required by section 95(1) (a), regardless of whether he carried on in employment he was being told that his former contract was from that moment gone.
Dissertations - Free Law Dissertations
