This well-established and authoritative analysis of the rules governing termination of employment provides coverage of the statutory and common law rights, as well as procedural considerations. It also deals with problems beyond termination such as competition from ex-employees, and worked calculations of compensation in unfair dismissal cases illustrate how the law operates in practice.

The new edition of The Law of Termination of Employment has been thoroughly updated to take account of major developments in law and practice, including:

• The demise of the statutory grievance and disciplinary procedures and their replacement with the ACAS Code
• The introduction of Agency Workers Regulations
• The new costs regime and relevant case-law
• Future developments such as the Government’s consultation on raising/reviving continuity two years qualifying period and Tribunal reform

Throughout the text, recent case-law is analysed, including the definition of employee (Autoclenz and Muschett) and dismissal (Willoughby v CF Capital plc), constructive dismissal (Hunter v Timber Components), and fairness of the dismissal (City of Edinburgh Council v Dickson).

The Law of Termination of Employment is essential reading for all employment lawyers and human resources personnel who require a detailed knowledge of this complicated area of law.

Preface

Introduction

Table of Cases

Table of Statutes

Table of Statutory Instruments

Part I: The Statutory Rights

• Preliminary Considerations
• Changes of Employer
• The Meaning of Dismissal
• Unfair Dismissal: The General Rules
• Unfair Dismissal: Special Cases
• Dismissals for Redundancy
• Remedies: Re-Employment Orders and Interim Relief
• Remedies: Compensation
  

Part II: The Common Law Rights

• Wrongful Dismissal
• Remedies for Wrongful Termination
  

Part III: Procedural Considerations

• Limitation Periods
• Insolvency
  

Part IV: Problems after Termination

• Competition by Ex-Employees
• References
• Costs in the Employment Tribunal

Index

Robert Upex MA LLM ACIArb FRSA
Of the Middle Temple, Barrister (Old Square Chambers);
Emeritus Professor of Law at the University of Surrey;
Sometime Chairman of the Employment Tribunals for England and
Wales (part time)

Stephen Hardy LLB PhD
Of Lincoln’s Inn, Barrister (9 St John Street);
Regional Treasury Panel Counsel;
Approved Counsel of the Equality Human Rights Commission;
Fee Paid Judge of the First Tier Tribunal (Social Enterprise Chamber)

Reviews of previous editions of The Law of Termination of Employment

“Constitutes a significant and authoritative text written with clarity and a genuine academic and practical understanding of the difficult issues involved” Legal Week

“Packs in everything legal advisers of workers and employers need to know about wrongful and unfair dismissal…well structured…the index is excellent” Solicitors Journal

“This is an indispensable book for anyone who dabbles in or is involved on a day to day basis with employment law” SCOLAG Journal

The first edition of this book was published 29 years ago. It is striking how,
over a period of almost three decades, the same sorts of issues recur, despite
the extensive changes to the law over the same period. Most notably, issues
relating to employment status – whether a person is employed or self-employed
– continue to trouble the tribunals and courts. Nor can it be said that the recent
decision of the Supreme Court in Autoclenz v Belcher sheds much light on this
area. The advent in 2010 of the Agency Workers Regulations will doubtless
also maintain that issue as an on-going concern. However, since the last
edition, the most important legislative event has been the repeal of the
statutory disciplinary and grievance procedures. Their demise has been pivotal
in a re-evaluation of the legislative landscape which surrounds the law on
dismissal.
As the law on unfair dismissal (now 39 years old) wends its way towards
middle-age, it continues to reinvent itself. Chapter 4 provides a pathway
through the labyrinth of rules and requirements. Other important pieces of
legislation, such as the Transfer of Undertakings (Protection of Employment)
Regulations 2006, continue to cause controversy. Consequently, Chapter 2
seeks to provide clarity on the on-going recent debate, as seen in Spaceright,
Pannu and Hunter v McCarrick, about service provision changes.
As before, there is an avalanche of new case law to be waded through.
Accordingly, the key cases have been selected and the text updated. Most
notably, Buckland makes clear that appeals cannot cure a fundamental breach
of contract. The Court of Appeal in President of the Methodist Conference v
Preston suggests that a minister of religion may be an employee for the
purposes of section 230 of the Employment Rights Act 1996. Furthermore, the
Supreme Court in Autoclenz v Belcher confirms the view, also taken by the
Court of Appeal, that the bargaining power of the parties may be relevant in
deciding what are the detailed terms of a contract under which an individual
works, and in particular whether that contract amounts to a contract of
service.
Recent Court of Appeal decisions have considered the issue of compensatory
loss, in terms of remedy. In Aegon the Court of Appeal highlights the elements
of calculation and shows how pension losses ought to be considered. All these
significant changes warrant this new edition.
The aim of this extensively updated edition is, as with the previous seven
editions, to consider the main causes of action available to employees whose
employment is terminated and to present the law and the relevant issues in a
way which will be of value to those practising in this field. This edition, like its
predecessors, covers the statutory rights given by the Employment Rights 1996
and the rights given by the common law to employees whose employment has
ended. The law of wrongful dismissal, which derives exclusively from the
common law and was developed in a series of nineteenth and early twentieth
century cases, remains of importance, particularly as employment tribunals
now have jurisdiction to hear wrongful dismissal cases.
To that end, we continue to adopt the structure of previous editions and have
treated the rights separately. Thus, the statutory rights are considered in Part I
and the common law rights in Part II. Procedural considerations are dealt with
in Part III. We have also added a new Chapter, Chapter 15, which deals with
the increasingly important issue of costs. Nevertheless, we continue to hope
that this book will remain a vade mecum for legal practitioners and HR
advisers, whether advising employers or employees, and will enable them to
decide what claims a dismissed employee may have, what the remedies are, and
what levels of compensation are likely to be awarded.
In this edition, Stephen Hardy joins the founding author as co-author.
We are indebted to our patient publishers for their kind assistance in the
preparation of this edition.
The exposition of the law is as at 1 February 2012.

Robert Upex & Stephen Hardy
Buckminster & Manchester
February 2012