Unfair Dismissal Research Articles

Business transfers, employers’ strategies and the impact of recent case law

Under the European Union’s 1977 Acquired Rights Directive, workers transferred to another employer can expect the majority of their original terms and conditions of employment to be protected and changes made without consultation can constitute constructive unfair dismissal. Confusion over the application of the directive greatly affected the introduction of compulsory competitive tendering to the provision of local authority services in the UK. Many of the issues remain unresolved and will cause problems as compulsory competitive tendering is replaced by the duty on authorities to “achieve best value”. This article seeks to clarify the position for employers by reviewing the most recent case law from both British and European courts.

Unfair dismissal: The new legal landscape

A raft of new legislation for workers’ rights has been introduced by the Government. A key issue is the new legal landscape for unfair dismissal, which will have an impact on all employers. What are these changes and what can employers do to protect themselves?

Why Paternalism Survives: Globalization, Democratization and Labour on South African Wine Farms

Neither deregulation, access to international markets, labour and tenure legislation nor the transition to democracy have fundamentally changed the paternalist labour regime on South African wine farms. Power relations remain visibly unequal, i.e. in most cases the farmer still determines, unilaterally, working rules, wages and housing conditions. Worker’ ignorance and passivity and a lack of union resources combine to leave the power of the farmer virtually unchallenged. Nevertheless, legislation has set limits to the length of the working day and created a considerable measure of social security for farm workers. It has reduced worker’ vulnerability and begun effectively to protect them against unfair dismissals, summary evictions and other kinds of arbitrary action on the part of the farmer. Imperfect as law enforcement may be, workers’ newly found protection is almost totally due to the determination on the part of the South African state to put an end to super‐exploitation on the farm. In this respect it differs markedly from many a government in the non‐metropolitan parts of the world who have uncritically embraced neo‐liberalism in the name of competitiveness and globalization.

By Any Means Unnecessary: Court Action and the Conciliation Procedure for Unfair Dismissals in the British Virgin Islands

By Any Means Unnecessary: Court Action and the Conciliation Procedure for Unfair Dismissals in the British Virgin Islands

Time Limits in Unfair Dismissal Cases: Practice and Procedure

Time Limits in Unfair Dismissal Cases: Practice and Procedure

Unemployment, Vacancies and Unfair Dismissals

In most West European economies the annual number of grievance procedures settling individual complaints against unfair dismissals has been increasing since the 1960s. This development has very often been attributed to the enactment of legal regulations restricting the dismissal behaviour of firms. Econometric analyses using data from Germany and Great Britain show that labour market developments, namely the flow into unemployment and the vacancy rate, have a much stronger influence on the cyclical demand for grievance procedures than changes in the “legal infrastructure” of the labour market. Without denying the importance of institutional differences it appears that the individual costs of unemployment (which, ceteris paribus, rise as the flow into unemployment increases and the vacancy rate decreases) are superior predictors of the demand for grievance procedures than institutional changes strengthening or weakening employees' rights.

London Branch of the Nigerian Universities Commission v. Bastians

State immunity — Jurisdictional immunity — Waiver — Claim for unfair dismissal by former employee of unit of Nigerian High Commission — Diplomatic note setting out reasons for dismissal and uncompleted notice of appearance form sent to Foreign and Commonwealth Office by High Commission with request to transmit to “appropriate authority” — Documents forwarded to industrial tribunal by FCO — Whether documents constitute notice of appearance — Whether a step taken in proceedings constituting submission to jurisdiction — Whether FCO empowered to enter appearance on behalf of mission of foreign sovereign State — The law of England

Recent cases. Commentary. Liability, compensation and justice in unfair dismissal

Argues that judges awarding compensation in cases of unfair dismissal under UK law have misinterpreted the legislation, and have failed to award the correct level of damages against the employer because they have focused on compensating for the pecuniary loss suffered by the employee and not on the broader purpose of deterrence. Examines the statutory powers given to the courts to make a compensatory award under the Employment Protection (Consolidation) Act 1978 and looks at how these have been applied in practice, considering issues such as blameworthiness and mitigation. Concludes that the legislation is structurally flawed because it fails to spell out the purpose of compensation, and that this has been compounded by misinterpretation.

Briefing: Precedents establish much of the law relating to unfair dismissal. ...

Briefing: Precedents establish much of the law relating to unfair dismissal. ...

ABC of work related disorders. Assessing fitness for work.

Assessments of fitness for work can be important for job applicants, employees, and employers. Unfitness due to an acute illness is normally self evident and uncontentious, but assessing other cases may not be straightforward and can have serious financial and legal implications for those involved. Commercial viability, efficiency, and legal responsibilities lie behind the fitness standards required by employers, and it may be legitimate to discriminate against people with medical conditions on these grounds. Unnecessary discrimination, however, is counterproductive if suitable staff are overlooked and may be costly in cases of unfair dismissal. In addition, the Disability Discrimination Act 1995 makes it illegal for employers of 20 or more staff to discriminate without justification against those with disability as defined by the act. Fortunately, balancing these often complex socioeconomic and legal issues to achieve a sustainable decision on fitness is not primarily a medical responsibility. Doctors do, however, have responsibilities to assess the relevant facts competently and provide helpful medical advice when required. #### Sociolegal implications of assessing fitness for work This article deals with assessing fitness for “identified employment.” To avoid confusion with related issues, the following points should be noted at the outset:

NOTES: Public Law, EC Law and the Qualifying Period for Unfair Dismissal

NOTES: Public Law, EC Law and the Qualifying Period for Unfair Dismissal

NOTES: TUPE, Unfair Dismissal and Two Years' Continuous Employment: Milligan and another v Securicor Cleaning Ltd [1995] IRLR 288(EAT)

NOTES: TUPE, Unfair Dismissal and Two Years' Continuous Employment: Milligan and another v Securicor Cleaning Ltd [1995] IRLR 288(EAT)

Ruling on unfair dismissals is good news for nurses

Ruling on unfair dismissals is good news for nurses

RECENT CASES: Sexual Harassment, Sex Discrimination and Unfair Dismissal

RECENT CASES: Sexual Harassment, Sex Discrimination and Unfair Dismissal

Blowing the Whistle on Fraud

Employees who blow the whistle at work on serious fraud and malpractice out of concern for public interest, are to be afforded new protection against reprisals and unfair dismissal in the Whistleblower Protection Bill, introduced in Parliament on 28th June, 1995, with all‐party support.

Comparative Systems of Unjust Dismissal: The British Case

Statutory employee protection against unfair dismissal has operated in the United Kingdom for over two decades. Despite deregulation in other areas of individual legal rights during the 1980s, protection against unfair dismissal has emerged virtually intact. In order to help explain its survival, this article draws on empirical research to explore what the law in operation has meant for employees, unions, employers, and the state. Although offering some protection to workers against arbitrary or most unreasonable employer behavior, the law has operated in a way sensitive to employer needs and interests, and managerial prerogative has been supported.

The Government of Canada v. The Employment Appeals Tribunal and Burke

State immunity — Jurisdictional immunity — Employment — Canada employing chauffeur with Canadian embassy in Dublin — Claim for unfair dismissal before Employment Appeals Tribunal — Unfair Dismissals Act 1977 — Whether Tribunal having jurisdiction to hear claim against foreign sovereign State — Canada claiming State immunity — Whether doctrine of absolute State immunity applicable — Whether doctrine of restrictive State immunity applicable — Distinction between jure gestionis and jure imperii — Whether driving for embassy commercial or governmental actRelationship of international law and municipal law — State immunity — Generally recognized principle of international law — Whether part of municipal law — Constitution of Ireland, Article 29(3) — The law of Ireland

Australian Employment Law in 1992

This review article covers a number of important developments in the field ofemployment law in Australia during 1992. The discussion is arranged undera number of headings: the changing industrial environment; common lawwrongful dismissal; statutory unfair dismissal; impact of the Trade PracticesAct; discrimination in the employment interview; and statutory initiatives in theemployment law area.

Unfair Dismissals: Recent Developments in the Federal and New South Wales Jurisdictions

Unfair Dismissals: Recent Developments in the Federal and New South Wales Jurisdictions

The e.c. pregnancy directive– principle or pragmatism?

Abstract This article deals with the rationale underpinning United Kingdom employment law and the pregnant woman, here referred to as the “business realism” perspective and the equal opportunities perspective. Current law affecting pregnant women is outlined with particular emphasis on the law relating to unfair dismissal, maternity leave and pay and the right to return to work. The effect of the new European Community Pregnancy Directive on United Kingdom law is considered and its proposed implementation under the Trade Union and Employment Rights Bill 1992. Conclusions are drawn on the “free market economy” approach presently espoused by the United Kingdom Government on employment protections and rights for pregnant employees.