business law topic 2 dismissal and liability

types of dismissal

wrongful, unfair, constructive, redundancy

wrongful dismissal

when the employers breaks the contract like firing without notice

unfair dismissal

when the employer fires someone without good reason or without fair procedures

constructive dismissal

when the employers bad behaviour forces the employee to quit

redundancy

when the job is no longer needed, if done fairly its not unfair dismissal

non compete clauses

rules in a contract that say the employees can’t work for a competing business for some time after leaving a job

non compete clauses only allowed

if they are fair - reasonable time limit, is it really needed to protect the companys secrets?

if the non compete clause is too strict or unfair

it won’t be enforced eg Ryanair v Bellew, the court said the rule was too broad

vicarious liability

an employer can be held responsible for something bad (like a mistake or accident) that an employee does while doing their job

employer is not responsible for liability

if the employee did something wrong completely outside their job called a frolic

to avoid being found guilty of unfair dismissal an employer must show

substantive grounds, procedural fairness

substantive grounds

poor performance, redundancy, legal reasons

procedural fairness

employee given a fair hearing, they must be told the reason and given a chance to respond, allowed representation

case at the employment appeals tribunal

Hennessy v Read & Write Shop Ltd

Hennessy v Read & Write Shop Ltd, employment appeals tribunal said

employers must carry out a proper investigation and base their decision on fair and reasonable grounds

types of dismissals that are always unfair under the law

firing someone for being pregnant, joining a union, making a complaint, whistleblowing

law on unfair dismissal is governed by

the Unfair dismissals Acts 1977-2015

Unfair dismissals Acts 1977-2015

aims to protect employees from being dismissed without just cause or due process

grounds upon which dismissal may be deemed unfair

under section 6(1) of the unfair dismissals act 1977 every dismissal is presumed to be unfair unless the employer can prove otherwise

dismissal may be deemed unfair if

no valid reason for dismissal, procedural unfairness, constructive dismissal

Section 6(4) of the 1977 act recognises certain grounds as potentially fair

capability, competence or qualifications, misconduct, redundancy, statutory restrictions, other substantial grounds

unfair dismissals reasons

trade union membership, pregnancy, taking legal action against the employer, religion, sexual orientation, race, age, disability etc

case of unfair dismissal

a hospital v a worker 2010

a hospital v a worker 2010

an employee was dismissed during sick leave due to pregnancy related illness

constructive dismissal section of act

under section 1 of the 1977 act if an employee resigns because of employer behaviour the resignation may be treated as dismissal

misconduct case

O’Reilly v Irish Press 1984

O’Reilly v Irish Press 1984

journalists was dismissed for gross misconduct due to repeated unauthorised absence

poor performance or capability case

Royle v wexford county council 2000

Royle v Wexford County Council 2000

an employee was dismissed after being found medically unfit to return to work, dismissal upheld because employer relied on expert medical evidence and followed fair procedure

redundancy justified if

role is eliminated, fair selection criteria used, consultation takes place

redundancy case

st ledger v Frontline Distributors Ireland Ltd 1995

st ledger v Frontline Distributors Ireland Ltd 1995

dismissal was held to be unfair because the employer did not consult and used redundancy to remove a problem employee

statutory restrictions

if continuing employment would break the law , dismissal can be fair

statutory restrictions example

lack of valid work permit