Termination of Employment-001

7/29/2019 Termination of Employment-001

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Termination of EmploymentThere are a number of ways to by which a contract of employment can be terminated. The way in which

the contract is terminated will determine the legal claims that may arise between the employer and

employee. The most common ways of terminating the contract are by:-

a) Resignation

b) Dismissal including constructive dismissal ,

c) Mutual agreement,

d) Expiry of a fixed term,

e) Frustration of contract.

It is always important to specify the period of notice that the employee is required to give in the

contract of employment. By doing this both the employer and employee will know whats expected of

them. In the absence of an agreed notice period, the courts and employment tribunal will imply a

reasonable period of notice. This is a vague term, and is not satisfactory for an employer trying to

maintain certainty in running the business. It is useful for employers to request that any employee has

an exit interview on resigning. This should help the employer to learn of any particular issues or

problems in the workplace, and then correct them.

Dismissal may be with notice, and in cases of gross misconduct may be without notice. Naturally a claim

of unfair dismissal can only be pursued if there has been a dismissal. Problems often arise when an

employee leaves, apparently having resigned, and then subsequently claims to have been forced to
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leave, and presents a case of constructive dismissal . The onus will be on the former employee to show

that he/she was actually constructively dismissed. Again this is another reason why employers should

use exit interviews, as these should identify possible future claims of constructive dismissal. An employer

and employee can agree to end the employment, on any date they agree to. The tribunals will scrutinise

such agreements very carefully if the former employee claims to have been forced into the agreement,

particularly if by a threat of dismissal.

The termination of employment may be agreed under a compromise agreement . There are certain legal

formalities on the contents of a compromise agreement, but if these are met the employee (or former

employee) will be precluded from pursuing a claim in the employment tribunal . A compromise agreement

is therefore a very useful tool in ensuring that no tribunal claim can arise out of a situation that the

employer believed was a termination of employment by mutual agreement.

It is very risky for employers to assume that the employment of an individual has ever been terminated

by agreement, particularly if this is not concluded by a compromise agreement.

The termination of a fixed term contract of employment will happen automatically when the fixed period

of the contract comes to an end. No further notice needs to be given.

There is a concept in contract law known as frustration of contract. Where the contract is frustrated

there is no dismissal, and the contract comes to an end automatically. Frustration occurs when the

performance of the contract becomes impossible from that which was originally expected by the

employee and employer. It will arise where the liability to fulfil the contract is the fault of neither party.

The two most common occasions when the employment comes to an end because of frustration is
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when the employee is imprisoned, or the ill-health of an employee prevents him/her from continuing the

work under the contract.Frustration due to imprisonment is easy to see, as the imprisonment will

prevent the employee being able to do his/her job. However, the employer would be foolish to think that

any period of imprisonment would constitute frustration. The employment appeal tribunal has ruled

that an employee that was effectively prevented from working for some time due to bail conditions did

not have the employment end due to frustration, and the employer could have chosen to actually

terminate the employment if it had so wished. The courts are very reluctant to accept an argument that

a contract of employment was frustrated due to long term ill-health. Employers are expected to try to

find alternative work, obtain medical information (particularly on prognosis), meat the employee to

discuss the situation. There is also the risk that the employer would be in breach of the Disability

Discrimination Act if it failed to make reasonable adjustments to assist the employee. The dismissal of

an employee in this situation could amount to discrimination if the employees condition amounts to a

disability and the employer hasnt tried to make reasonable adjustments to the employees work or

working patterns.
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Termination of Employment-001