EMPLOYMENT TRIBUNAL CASE STUDY

Employment Tribunal case study



Employment Tribunal case study

Introduction

Dave Davidson may have a claim for both unfair treatment at workplace and constructive unfair dismissal. In order to bring these claims there are certain requirements. For a constructive unfair dismissal claim, Dave must simply show that he was treated unfairly and that this was wrongful. However for an unfair dismissal claim he must show that he has been unfairly treated, that he qualifies for the right to claim for constructive unfair dismissal, that the Torrington's did not have a fair reason and that if the Torrington's did have a fair reason that it was implemented fairly. As per Law, he will qualify as he has been working for more than six years but on the other hand the organization also holds the right to transfer people to different departments.

Process

In order to establish either claim there is a requirement that Dave should establish that he was treated unfairly. Where the employee commits a repudiatory breach of contract, the elective theory holds that the contract is only terminated once the employer, as the innocent party, has accepted the breach. Since the contract is ended by the employer, there is a dismissal for the purposes of section 95(1)(a) of the ERA 1996. As the employee has committed a serious contractual breach, the Torrington's may not find it difficult to establish that there was a potentially fair reason for the dismissal and that it acted reasonably in the circumstances, but this does not inevitably follow (Warr, 2007, 89).

A more effective way of protecting the Torrington's in these circumstances is the idea of self dismissal but this doctrine is of doubtful validity. In Gammon v J C Firth Ltd it was suggested that employees who walked out of their employment in the course of a wildcat strike had thereby dismissed themselves, and in London Transport Executive v Clarke Lord Denning MR argued that the same reasoning should apply to a case where the employee too seven weeks' leave of absence without permission.

According to Templeman LJ the acceptance by Torrington's of repudiation by a worker who wishes to continue his employment notwithstanding his repudiatory conduct constitutes the determination of the contract of employment by the employer. However, his Lordships distinguished the situation where the employee walked out without wishing to continue the relationship of employment; here, the Torrington's accepted legislation could apply only if there was a constructive dismissal, in the sense that the employee was responding to a repudiatory breach by the employer.

Preparation required by the employer

For Torrington's they should know that an unlawful claim is submitted in the same manner as an unfair dismissal claim. If the claim cannot be resolved then a submission to a court is made. “An application may indeed complain of both unfair dismissal and unlawful termination. This is generally made to either the Federal Court of UK”. Stewart (2007, p.442) suggests that once an employee raises one of the reasons for the termination, the onus is forced ...