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04/03/2012

Critical Comparative Analysis of Employment Law in the U.K. and Ireland


"Critical Comparative Analysis of Employment Law in the U.K. and Ireland"

UK Redundancy Law: Unfair and Wrongful Dismissal

A redundancy dismissal will be fair if there is a genuine redundancy situation. This is defined in Section 81 of the Employment Protection (Consolidation) Act 1978, as: (i) where the employer ceases the business for the purpose of which the employee was employed, or (ii) where the requirements of the business for employees to do work of a particular kind have ceased or diminished.

The recent case of King vs Eton involved selection criteria based on commitment, flexibility, trainability, quality of performance, use of initiative, special skills, efficiency, attendance record and disciplinary record (Employment Law 2003). The tribunal held the dismissals unfair because there had been no evidence from the individuals who marked the assessments and it was therefore not possible to determine whether the selection criteria had been applied fairly. The Court of Session upheld the decision that the dismissals were unfair although no express reference was made to that particular ground. Another common pitfall for employers in connection with redundancy is that of consultation leading to wrongful dismissal. In the 1995 case of Rowell vs Hubbard Group Services, the employees received letters warning them of impending redundancies (Employment Law 2003). Reference was made to the 1994 case of Orr v British Coal Corporation.

Most redundancy cases in UK had been in favor of the unfairly and wrongfully dismissed employees as evidenced by the Tremlett and Banerji report which showed that 41% of unfair and wrongful dismissal cases were concluded in favour of the applicant. This agrees with both the Department of Trade and Industry statistics and the PBS data (Tremlett and Banerji, 1994). Cases such as the Treganowan (C.A.) v. Robert Knee & Co. Ltd., Norton Tool Co Ltd v. Tewson and BSC Sports and Social Club v. Morgan, held that a dismissal which was otherwise fair was rendered unfair because it was a summary dismissal. Again, the relevant question was whether the dismissal was justified, not whether the redundancy was.

Several legislations had been passed in order to protect the rights of the employees in redundancy cases. The Redundancy Entitlement- Statutory Rights also known as PL808 (Rev 6) outlines the rights of the employees in UK as supported by noted laws such as the Employment Rights Act 1996 which outlines provisions relating to time off to look for work or to make arrangements for training when facing redundancy and explains how a complaint is settled. The Contract of Employment (PL810 Rev 6), the Unfairly Dismissed Act (PL712 Rev 18). Moreover, the Transfer of Undertakings (Protection of Employment) Regulations 1981 transfers the contract of the dismissed employee to the new employer. These legislations defined the boundaries on what the employers and what the employees can do in cases where redundancy occurs in the company.

IRELAND Redundancy Law: Unfair and Wrongful Dismissal

The Redundancy Payments Acts 1967 - 1991 define the meaning of redundancy and set out the eligibility criteria for obtaining a statutory redundancy payment. The Acts also set out the procedure to be followed by an employer making an employee redundant. A statutory redundancy payment is calculated by reference to the employees' weekly pay, age and length of service. There are additional obligations under the Protection of Employment Act, 1977 in respect of collective redundancies.

The Unfair Dismissals Acts 1977 and 1993 gives all employees, to which it applies, an entitlement to redress for unfair dismissal in the form of compensation (of an amount not exceeding 104 weeks gross pay), reinstatement or re-engagement, unless the employer can establish that the dismissal was not unfair (Matheson Ormsby Prentice, 1999).

An employee claiming unfair dismissal must refer his claim within six months of the date of dismissal to either a Rights Commissioner or the Employment Appeals Tribunal ("EAT"). In all circumstances, employees are entitled to constitutional due process and procedural fairness. Accordingly, reasonable procedures must be followed, such as the giving of warnings, an opportunity for the employee to present his case, and a proper and fair investigation into the circumstances leading to the dismissal (Matheson Ormsby Prentice, 1999). An employee may also seek recourse at common law for wrongful dismissal, but in practice, except in the case of highly paid workers, recourse is to the EAT. In recent times it has become more common for employees to apply for an injunction to prevent the employer from dismissing him or her (Matheson Ormsby Prentice, 1999).

Redundancy cases ranges from a group of workers to one worker: cases such as that of Kehoe Crane Hire vs Services Industrial Professional Technical Union, where the Union charged the union were unfairly dismissed due to collective redundancy, and the case of Boland Auto Sales Limited, were alleged to have been unfairly dismissed due to unfair selection for redundancy. These cases had been safeguarded by the Industrial Relations Acts of 1946-1990 and he Industrial Relations Act 1969 which stipulated specific sections in resolving cases as such. Moreover, the Unfair Dismissal Act and  Protection of Employment Act were reinforce in the amount of payment from redundancy dismissals as the case of AS Richardson Limited vs Services Industrial Professional Trade Union.

Several noted legislations had sought to protect the employees from unfair and wrongful dismissal in redundancy cases. The Irish Unfair Dismissals Act 1977 stipulates that a successful claim in law against the employer by the dismissed employee can be acted upon. Furthermore, the Employment Act 1973 provides employees with written details of their employment and gives employees an entitlement to minimum periods of notice which are based on the length of their continuous employment.

Analysis           

Redundancy cases in UK and Ireland had been significantly acted upon by several legislation laws such as the Unfair Dismissal Acts for both countries, the Employment Protection Acts, including the amount of payment that should be received by unfairly and wrongfully dismissed employees. Moreover, the redundancy laws in UK and Ireland are significantly similar from one another, from the legislations and the constitutional laws, to redundancy resolution and cases brought to the industrial courts. However, one very significant trend can be deduced, that the tribunals in UK have shown to be more responsive to the workers whereas, in Ireland, companies most often win cases. This can be attributed to the leanings of both countries. UK is more inclined to follow civil law whereas Ireland tends to follow common laws. Thus, precedents take the primacy in the decisions of Ireland industrial tribunals. On the other hand, UK tribunals do not so much rely on precedents but rather on the merits of cases and how it applies to the employment laws.

            In redundancy cases both however, whether in unfair or wrongful dismissal cases had shown reluctance in awarding punitive damages particularly financial damages and most often lets the plaintiffs and defendants settle the matter. Moreover, conciliation and mediation takes precedence in both countries. This out of court settlement reflects the diplomacy inherent in the tow countries. Furthermore, this is an effective strategy in reducing court backlogs.

 

 

References

 

ACAS Consultation Paper (1998) 'ACAS Arbitration Scheme for the Resolution of Unfair          Dismissal Disputes' (ACAS)

 

Aiden Shipping Co Limited v Interbulk Limited [1986] AC 965

BSC Sports and Social Club v. Morgan [1987] I.R.L.R. 391

KEHOE CRANE HIRE - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION AD9351

Matheson Ormsby Prentice. (July 1999) Employment law in Ireland. International Center          for Commercial Law.

Norton Tool Co Ltd v. Tewson [1972] IRLR 86

Norton Tool Co. Ltd. v. Tewson [1973] 1 W.L.R. 45)

Singh v Observer Newspaper Limited [1989] 2 All ER 751

 

Symphony Group Plc v Hodgson [1993] 4 All ER 143

Treganowan (C.A.) v. Robert Knee & Co. Ltd. [1975] I.C.R. 405. Employment Appeal      Tribunal

Tremlett, N and Banerji, N (1994) 'The 1992 Survey of Industrial Tribunal Applications'  Employment Department Research Series No.22 (London: ED)

UK Employment Law. Available at http://www.gannonandco.com/employment    law.html#Unfair dismissal. Retrieved Sept 8, 2003.

UK Employment Relations Act 1999. Department of Trade and Industry. Available at            http://www2.dti.gov.uk. Retrieved Sept 8, 2003.

UNFAIRLY DISMISSED PL712 Rev 18 http://www2.dti.gov.uk/er/individual/fair    pl714.htm. Retrieved Sept 8, 2003.

 

 

 

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