EMPLOYMENT LAW

Employment Law

Employment Law

Introduction

2-1 All employees have a right under employment law to take a reasonable period of time off work in order to deal with emergencies involving dependents, this could be a child, spouse or parent). This is in addition to the employee's normal holiday entitlement. They have a right to take a reasonable period of time off work to deal with an emergency involving a dependant, (e.g. a child, spouse, parent etc). This is in addition to the employee's normal holiday entitlement.

Issues relating to the implied term which imposes on both employer and employee a duty not to engage in conduct likely to undermine the relationship of trust and confidence which the employment contract implicitly envisages, often arise in the context of dismissal because every breach of the T&C Term is a repudiatory breach of the contract.

In most cases involving a contract claim based on breach of the T&C Term the employee will have a variety of other claims available. For example, he may have a claim for damages for breach of contract by way of wrongful dismissal, or a complaint of unfair dismissal or constructive unfair dismissal, or a claim for personal injury caused by the employer which may be brought on the basis of a breach of a contractual duty and / or of a tortious duty to provide a safe system of work. Where there is a breach of the T&C Term by an employee, the employer must in theory be able lawfully to accept the repudiation and, if appropriate, to recover damages.

Nevertheless, it is difficult to envisage a situation in which an employer would use the language of breach of the T&C Term in the context of dismissal, simply because of the limited statutory list of potentially fair reasons for dismissal, and because there will almost always be express contractual duties on which the employer can base a claim for damages, such as specific duties not to compete nor to misuse confidential information during employment.

2.2 There is no set limit on the amount of time, which can be taken, but it should be a reasonable period to allow the employee to deal with the emergency. The right does not include a right to pay during time off and this is left to the discretion of the employer.

Any employee who has been denied time off to care for dependants or time off for ante-natal classes and appointments may complain to an Employment Tribunal.

Constructive Dismissal

As a general rule, in order to succeed in a claim for constructive (unfair) dismissal, the employee must show that he/she resigned in response to a fundamental breach of contract by the employer. This breach can be a fundamental one such as refusal to pay wages or alternatively a series of smaller ones with a final incident that 'breaks the camel's back' and prompts a resignation. The burden of proof is on the employee to show that he/she resigned in response to a breach of contract so ...