Finding Fault in the Law of Unfair Dismissal: The Insubstantiality of Reasons for Dismissal

IF 1 4区 社会学 Q3 INDUSTRIAL RELATIONS & LABOR
Philippa Collins
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引用次数: 0

Abstract

The question of whether an Employment Tribunal should accept the employer’s reason for a dismissal has received little attention in studies of the law of unfair dismissal. This shortage of analysis continues even though this stage holds the potential to decide the outcome of the case. The current approach to the interpretation of the five potentially fair reasons for a dismissal is to leave them undefined, allowing employers broad scope to rely upon almost any reason to justify their decision to dismiss an employee. This piece demonstrates how the established view of this stage of the fairness process is a missed opportunity and fails to deliver the full potential of the law of unfair dismissal as it was drafted. In order to protect the fundamental right not to be unjustifiably dismissed, a threshold of substantiality should run throughout the reasons for dismissal—assessed objectively by the Tribunal judge. The assertion of such a threshold is particularly necessary under the open-ended ‘some other substantial reason’ category. The piece turns then to disciplinary dismissals, arguing that the current approach results in fair dismissals, first, for minor misconduct and, second, because of conduct with no connection to the employment relationship. Two solutions to these particular problems will be put forward: a tailored legislative amendment and a contractual reading of the existing section. Both approaches would introduce an element of substantive fairness that is currently absent and place some confines on the scope of the employer’s managerial prerogative by restraining the reasons for which they may fairly dismiss.
不公平解雇法的过错认定:解雇理由的不实性
在对不公平解雇法的研究中,就业审裁处是否应接受雇主的解雇理由的问题很少受到注意。尽管这一阶段有可能决定案件的结果,但这种缺乏分析的情况仍在继续。目前对五个可能合理的解雇理由的解释方法是不定义它们,允许雇主广泛地依赖几乎任何理由来证明他们解雇员工的决定是合理的。这篇文章展示了关于公平程序这一阶段的既定观点是如何错失机会的,并且未能充分发挥不公平解雇法起草时的潜力。为了保护不被无理解雇的基本权利,实质性的门槛应贯穿于解雇的所有理由,并由法庭法官客观评估。在开放式的“某些其他实质性原因”类别下,这种阈值的主张特别必要。然后,这篇文章转向了纪律解雇,认为目前的方法导致了公平的解雇,首先,因为轻微的不当行为,其次,因为与雇佣关系无关的行为。针对这些特殊问题将提出两种解决办法:一种有针对性的立法修正案和对现有章节的合同式解读。这两种方法都将引入一种目前缺乏的实质性公平因素,并通过限制雇主可以公平解雇的理由,对雇主管理特权的范围施加一些限制。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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来源期刊
CiteScore
1.90
自引率
20.00%
发文量
30
期刊介绍: Industrial Law Journal is established as the leading periodical in its field, providing comment and in-depth analysis on a wide range of topics relating to employment law. It is essential reading for practising lawyers, academics, and lay industrial relations experts to keep abreast of newly enacted legislation and proposals for law reform. In addition Industrial Law Journal carries commentary on relevant government publications and reviews of books relating to labour law.
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