1 DISPUTE RESOLUTION CATHERINE BARNARD TRINITY COLLEGE, CAMBRIDGE 2019-20
2 TERMINATION OF THE CONTRACT
3 THE COMMON LAW POSITION I. WRONGFUL DISMISSAL 1. INTRODUCTION It seems that generally at common law an employer is able to get rid of its employees on an indefinite contract at will without having to show a good reason - McClory v Post Office [1992] ICR 758. However, a dismissed employee will have a claim in damages for breach of contract if the employer breached an express or an implied term in the contract causing loss when dismissing the employee. Such claims are known as claims for wrongful dismissal. The terms which are likely to be broken are: · Implied and express procedural terms · Express and implied substantive terms 2. PARADIGM CASE: DISMISSAL WITHOUT NOTICE, EXPRESS OR IMPLIED 2.1 THE NOTICE RULE The general rule at common law was that the contract of employment was terminable by either side upon reasonable notice. The length of notice is usually what was agreed either expressly or impliedly. This usually meant either the notice that was customary in that trade or profession, or a period of time derived from the payment period. In the absence of any indication to the contrary the court will infer that the contract is terminable by reasonable notice. Statutory regulation of minimum notice periods is now provided for by ss.86-91 Employment Rights Act ("ERA") 1996 (previously EPCA, ss. 49-52 and Schedule 3), which take effect as implied terms. The court will never imply a shorter period of notice but it may imply a longer period - Hill v Parsons [1972] Ch 305; Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood [2018] UKSC 22 (in absence of express term, contractual notice of termination takes effect when it comes to employee's attention and they either read it or have reasonable opportunity to do so). Section 86 provides that the notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more is: Period of continuous employment Period of notice