Termination

Employer

There are numerous reasons why a Contract of Employment may be terminated. Regardless of the reason, as the employer you must follow a fair procedure if a claim for wrongful, unfair, or constructive dismissal is not to arise. In addition, your actions could also result in a claim for discrimination under the Equality Act 2010. It is therefore very important whenever an employee is terminated from work for you to follow a fair and transparent procedure.

Employment Contracts may be terminated by the employer, the employee, or by the mutual agreement of both parties.

For example, your employee can bring the employment relationship to an end by resigning. Once the employer has accepted that resignation, the employee cannot normally unilaterally withdraw it. There is, however, case law to suggest that a failure to allow an employee to withdraw his resignation was considered a failure to make reasonable adjustments (in that case the employee was suffering from depression when the resignation was submitted, and it was found by the Employment Appeal Tribunal that the employer had not made a "reasonable adjustment" when that same employee asked to be reinstated a few weeks later).

The mutual consent of both parties can bring an Employment Contract to an end, but even here an employee may argue later that unfair dismissal occurred; the employer will then be required to show clear evidence that the agreement was in fact mutual (such as the use of a Compromise Agreement where, following legal advice, both parties will agree to end the employment relationship).

If some event occurs which was not foreseeable by either the employer or the employee and which makes the Employment Contract impossible to perform or radically different from the originally contemplated Contract, it will be deemed by law that the Contract is at an end by way of "frustration". Examples of frustration include the death of your employee (or, in the case of a sole practitioner, the death of the employer), or the long term illness or imprisonment of your employee. As an employer, it is important to note that, traditionally, Employment Tribunals have been very reluctant to accept the argument that a Contract of Employment has been frustrated and is therefore no longer effective.

The conduct of your employee may allow you to terminate the Contract of Employment, but again special care is required. Generally there are two types of conduct dismissals - one that occurs through a series of warnings which culminate in dismissal and the other is gross misconduct which allows you to dismiss the employee without notice and without pay.

Capabilities issues also allow you to terminate an employee's Employment Contract where, after a series of formal meetings, that employee is unable or unwilling to meeting your employment expectations in some way (normally poor performance). Extreme care needs to be used when terminating an Employment Contract for capabilities issues.

In summary, although termination of an employee (by the employee alone, by the employer alone, or by mutual agreement) is possible, to avoid a potential claim for unfair dismissal the termination must be handled very carefully (even if the employee requests the termination!). It is therefore very important to contact Fosters and seek legal advice prior to commencing termination proceedings against an employee.

The above is for general information only and should not be construed as formal legal advice.


Employee

There are numerous reasons why either you or your employer would want to terminate your Contract of Employment.

For example, you can bring your employment relationship to an end by resigning. Once the employer has accepted that resignation, you cannot normally unilaterally withdraw it. There is, however, case law to suggest that a failure to allow an employee to withdraw his resignation can be considered a failure to make reasonable adjustments (in that case the employee was suffering from depression when the resignation was submitted, and it was found by the Employment Appeal Tribunal that the employer had not made a "reasonable adjustment" when that same employee asked to be reinstated a few weeks later).

The mutual consent of both parties can bring an Employment Contract to an end, but even here you as the employee may argue later that unfair dismissal occurred; the employer will then be required to show clear evidence that the agreement was in fact mutual (such as the use of a Compromise Agreement where, following legal advice, both parties will agree to end the employment relationship).

If some event occurs which was not foreseeable by either you or your employer and which makes the Employment Contract impossible to perform or completely different from the originally contemplated Contract, it will be deemed by law that the contract is at an end by way of "frustration". Examples of frustration include the death of an employee (or, in the case of a sole practitioner, the death of the employer), long term illness of the employee, or imprisonment of the employee. There are, however, special rules and procedures your employer must go through in order to prove frustration, and it is not generally an easy hurdle for the employer to overcome.

Your conduct may allow your employer to terminate the Contract of Employment, but again special rules and procedures exist to ensure that your employer is not abusing this area of law for its own advantage.

Generally there are two types of conduct dismissals - one that occurs through a series of warnings which culminate in dismissal and the other is gross misconduct which allows you to be dismissed without notice and without pay.

Capability issues may enable the employer to fairly terminate your Contract of Employment. With capability issues your employer must show that, after a series of formal meetings, you are unable or unwilling to meeting your employment expectations in some way (normally poor performance).

If your employer attempts to terminate your employment for any of the reasons listed above, it is involving itself in a particularly difficult area of law. If you find your employment has been terminated for futher advice, contact Fosters immediately - we have the expertise to determine whether your termination is fair and, if so, how to fight for your rights.

The above is for general information only and should not be construed as formal legal advice.

Contacting Us

Fosters Solicitors team of Business & Commercial lawyers have a wealth of experience and knowledge to assist you in relation to any legal query or matter you may have. Call us on 01603 620508 or complete our and a member of the department will be in touch very soon.