{"title":"不公平解雇法的过错认定:解雇理由的不实性","authors":"Philippa Collins","doi":"10.1093/indlaw/dwab018","DOIUrl":null,"url":null,"abstract":"\n 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.","PeriodicalId":45482,"journal":{"name":"Industrial Law Journal","volume":"10 1","pages":""},"PeriodicalIF":1.0000,"publicationDate":"2021-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":"{\"title\":\"Finding Fault in the Law of Unfair Dismissal: The Insubstantiality of Reasons for Dismissal\",\"authors\":\"Philippa Collins\",\"doi\":\"10.1093/indlaw/dwab018\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"\\n 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.\",\"PeriodicalId\":45482,\"journal\":{\"name\":\"Industrial Law Journal\",\"volume\":\"10 1\",\"pages\":\"\"},\"PeriodicalIF\":1.0000,\"publicationDate\":\"2021-08-10\",\"publicationTypes\":\"Journal Article\",\"fieldsOfStudy\":null,\"isOpenAccess\":false,\"openAccessPdf\":\"\",\"citationCount\":\"0\",\"resultStr\":null,\"platform\":\"Semanticscholar\",\"paperid\":null,\"PeriodicalName\":\"Industrial Law Journal\",\"FirstCategoryId\":\"90\",\"ListUrlMain\":\"https://doi.org/10.1093/indlaw/dwab018\",\"RegionNum\":4,\"RegionCategory\":\"社会学\",\"ArticlePicture\":[],\"TitleCN\":null,\"AbstractTextCN\":null,\"PMCID\":null,\"EPubDate\":\"\",\"PubModel\":\"\",\"JCR\":\"Q3\",\"JCRName\":\"INDUSTRIAL RELATIONS & LABOR\",\"Score\":null,\"Total\":0}","platform":"Semanticscholar","paperid":null,"PeriodicalName":"Industrial Law Journal","FirstCategoryId":"90","ListUrlMain":"https://doi.org/10.1093/indlaw/dwab018","RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q3","JCRName":"INDUSTRIAL RELATIONS & LABOR","Score":null,"Total":0}
Finding Fault in the Law of Unfair Dismissal: The Insubstantiality of Reasons for Dismissal
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.
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.