Pub Date : 2022-09-02DOI: 10.1080/09615768.2022.2135255
Mateja Đurović, Franciszek Lech
Under English law, it is Equity that appears to have the strongest feminist credentials. It professes to treat women, especially married women, ‘more tenderly’ than men. Equity herself is a ‘woman’, a ‘special friend of womankind’; perhaps even a ‘sister’. At times she is a ‘white knight’, riding to ‘the rescue of some damsel caught in the toils of the common law’. She is seen as a ‘vehicle for justice and protection of those who are vulnerable’, a ‘system which matches established principle to the demands of social change’, capable of recasting the established norms of our civil law to ensure women’s rights are given adequate levels of protection. Hence, if one desires to assess the extent to which the rights of women are protected under English Law, Equity is a good place to look. Particularly, the doctrine of undue influence pertains to women directly: it focuses on relational abuses, family home and distribution of power within relationships. Tracing the court’s approach to what we term the ‘husband/wife scenario’ is particularly
{"title":"The Serpent Under the Flower: Equity’s Tenderness Towards Married Women in the Doctrine of Undue Influence","authors":"Mateja Đurović, Franciszek Lech","doi":"10.1080/09615768.2022.2135255","DOIUrl":"https://doi.org/10.1080/09615768.2022.2135255","url":null,"abstract":"Under English law, it is Equity that appears to have the strongest feminist credentials. It professes to treat women, especially married women, ‘more tenderly’ than men. Equity herself is a ‘woman’, a ‘special friend of womankind’; perhaps even a ‘sister’. At times she is a ‘white knight’, riding to ‘the rescue of some damsel caught in the toils of the common law’. She is seen as a ‘vehicle for justice and protection of those who are vulnerable’, a ‘system which matches established principle to the demands of social change’, capable of recasting the established norms of our civil law to ensure women’s rights are given adequate levels of protection. Hence, if one desires to assess the extent to which the rights of women are protected under English Law, Equity is a good place to look. Particularly, the doctrine of undue influence pertains to women directly: it focuses on relational abuses, family home and distribution of power within relationships. Tracing the court’s approach to what we term the ‘husband/wife scenario’ is particularly","PeriodicalId":88025,"journal":{"name":"King's law journal : KLJ","volume":"86 1","pages":"493 - 516"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81269619","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-08-11DOI: 10.1080/09615768.2022.2109233
S. Halliday, N. Finch, J. Meers, Joe Tomlinson, M. Wilberforce
In March 2020, the UK introduced a set of rules to ‘lockdown’ the country in response to the COVID-19 pandemic. These restrictions represented an extraordinary curtailment of normal life for the entire population, prohibiting people from leaving their homes without a reasonable excuse. The lockdown rules constituted a key feature of governmental efforts to manage the early stages of the pandemic crisis. Their central purpose was to change people’s routine behaviours in order to contain the rate of infections, thus protecting public health and preserving the NHS’s capacity to treat the anticipated influx of patients. Evidence suggests that the UK’s first lockdown attracted high levels of compliance. Yet, a question remains about exactly why the UK public complied. Understanding people’s motivations towards compliance is important for governments when, in periods of crisis, they seek to use rules to change an entire population’s routine behaviour at considerable pace. This is particularly the case in the context of a pandemic where changes in even a small number of people’s behaviours can make a big difference to the overall number of infections. While hitherto research has generally explored adherence to behavioural restrictions irrespective of the legal status of their underpinning rules, our analysis focuses
{"title":"Why the UK Complied with COVID-19 Lockdown Law","authors":"S. Halliday, N. Finch, J. Meers, Joe Tomlinson, M. Wilberforce","doi":"10.1080/09615768.2022.2109233","DOIUrl":"https://doi.org/10.1080/09615768.2022.2109233","url":null,"abstract":"In March 2020, the UK introduced a set of rules to ‘lockdown’ the country in response to the COVID-19 pandemic. These restrictions represented an extraordinary curtailment of normal life for the entire population, prohibiting people from leaving their homes without a reasonable excuse. The lockdown rules constituted a key feature of governmental efforts to manage the early stages of the pandemic crisis. Their central purpose was to change people’s routine behaviours in order to contain the rate of infections, thus protecting public health and preserving the NHS’s capacity to treat the anticipated influx of patients. Evidence suggests that the UK’s first lockdown attracted high levels of compliance. Yet, a question remains about exactly why the UK public complied. Understanding people’s motivations towards compliance is important for governments when, in periods of crisis, they seek to use rules to change an entire population’s routine behaviour at considerable pace. This is particularly the case in the context of a pandemic where changes in even a small number of people’s behaviours can make a big difference to the overall number of infections. While hitherto research has generally explored adherence to behavioural restrictions irrespective of the legal status of their underpinning rules, our analysis focuses","PeriodicalId":88025,"journal":{"name":"King's law journal : KLJ","volume":"22 14_suppl 1","pages":"386 - 410"},"PeriodicalIF":0.0,"publicationDate":"2022-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88105517","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-08-10DOI: 10.1080/09615768.2022.2108925
Mark E. Moore
Recent years have witnessed significant interest in demystifying the implication of contract terms. Whilst the discussion thus far has elicited some answers, the subject remains notoriously ‘elusive'. This article advances discussion in the field. It argues that underlying recent debates are deeper issues that must be brought to the surface. These include theoretical incoherence regarding the nature/purpose of implication tracing back to The Moorcock (1889), and analytical indeterminacy in applying the established ‘tests' for implication, as courts vary between conflicting instrumental and non-instrumental approaches. Feeding both issues is inconsistent linguistic use of core terminology. This article helps demystify implication by distilling two ‘theses’ well-supported by the authorities, and elaborating their details and significance. Whilst the divided state of the authorities precludes instant resolution, the article further contributes a reflection on possible ways forward, including a new possibility raised here that implication may comprise two distinct exercises matching the theses described.
{"title":"Demystifying Implied Terms","authors":"Mark E. Moore","doi":"10.1080/09615768.2022.2108925","DOIUrl":"https://doi.org/10.1080/09615768.2022.2108925","url":null,"abstract":"Recent years have witnessed significant interest in demystifying the implication of contract terms. Whilst the discussion thus far has elicited some answers, the subject remains notoriously ‘elusive'. This article advances discussion in the field. It argues that underlying recent debates are deeper issues that must be brought to the surface. These include theoretical incoherence regarding the nature/purpose of implication tracing back to The Moorcock (1889), and analytical indeterminacy in applying the established ‘tests' for implication, as courts vary between conflicting instrumental and non-instrumental approaches. Feeding both issues is inconsistent linguistic use of core terminology. This article helps demystify implication by distilling two ‘theses’ well-supported by the authorities, and elaborating their details and significance. Whilst the divided state of the authorities precludes instant resolution, the article further contributes a reflection on possible ways forward, including a new possibility raised here that implication may comprise two distinct exercises matching the theses described.","PeriodicalId":88025,"journal":{"name":"King's law journal : KLJ","volume":"1 1","pages":"455 - 492"},"PeriodicalIF":0.0,"publicationDate":"2022-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89791603","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-31DOI: 10.1080/09615768.2022.2104679
Tang Hang Wu
Even though unjust enrichment has been recognised by English law for several decades, this branch of the law continues to be a highly contested area. Debate rages on with respect to many facets including the formal structure of the subject, the ambit of unjust factors and its relationship with the law of property. The decision of the Singapore Court of Appeal in Esben Finance Ltd and Others v Wong Hou-Lianq Neil (‘Esben Finance Ltd’) explores many of these difficult areas. In a wide-ranging judgment, Esben Finance Ltd covers an astonishing variety of issues namely limitation period, at claimant’s expense, illegality, unjust factors and the relationship between unjust enrichment and property law. The decision of the High Court was delivered by Bernard Eder IJ. On appeal, the judgment was delivered by Justice of Appeal Andrew Phang, with the court consisting of a coram of distinguished Singapore judges, Sundaresh Menon CJ and Judith Prakash JA, and international judges, Lord Neuberger and
{"title":"Limitation Period for Unjust Enrichment Claims, at the Claimant’s Expense, Lack of Consent, Illegality, and Vindication of Property Rights: Esben Finance Ltd and Others v Wong Hou-Lianq Neil","authors":"Tang Hang Wu","doi":"10.1080/09615768.2022.2104679","DOIUrl":"https://doi.org/10.1080/09615768.2022.2104679","url":null,"abstract":"Even though unjust enrichment has been recognised by English law for several decades, this branch of the law continues to be a highly contested area. Debate rages on with respect to many facets including the formal structure of the subject, the ambit of unjust factors and its relationship with the law of property. The decision of the Singapore Court of Appeal in Esben Finance Ltd and Others v Wong Hou-Lianq Neil (‘Esben Finance Ltd’) explores many of these difficult areas. In a wide-ranging judgment, Esben Finance Ltd covers an astonishing variety of issues namely limitation period, at claimant’s expense, illegality, unjust factors and the relationship between unjust enrichment and property law. The decision of the High Court was delivered by Bernard Eder IJ. On appeal, the judgment was delivered by Justice of Appeal Andrew Phang, with the court consisting of a coram of distinguished Singapore judges, Sundaresh Menon CJ and Judith Prakash JA, and international judges, Lord Neuberger and","PeriodicalId":88025,"journal":{"name":"King's law journal : KLJ","volume":"36 1","pages":"345 - 357"},"PeriodicalIF":0.0,"publicationDate":"2022-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89060281","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-04DOI: 10.1080/09615768.2022.2101350
Kenji Arita
In Japan dismissals are regulated by the Article 16 of the Labour Contracts Act (LCA) enacted in 2007 which stipulated the established case law rule. It provides that ‘if a dismissal lacks objectively reasonable grounds and is not considered to be appropriate in general societal terms, it is treated as an abuse of rights and is invalid’. Under this doctrine of abusive dismissal, the effect of abusive dismissal is to makes the abusive dismissal invalid and then the courts deliver a declaratory judgment confirming the status of the dismissed worker as the worker of the employer and order of backpay. This remedial rule has a deterrent effect on arbitrary dismissals, and is the most successful aspect of Japanese unfair dismissal law. There is, however, a fatal defect. The Japanese unfair dismissal law does not have effective procedures to resolve dismissal disputes that are prompt, low cost and easy to use. The most necessary thing is to build the effective procedure to resolve dismissal disputes for all the dismissed workers. If this reform is realised, it will provide much more dismissed workers than before with the effective remedies for abusive dismissals and further a deterrent effect of the Article 16 of the LCA on arbitrary dismissals.
{"title":"Legal Regulation of Dismissal in Japan","authors":"Kenji Arita","doi":"10.1080/09615768.2022.2101350","DOIUrl":"https://doi.org/10.1080/09615768.2022.2101350","url":null,"abstract":"In Japan dismissals are regulated by the Article 16 of the Labour Contracts Act (LCA) enacted in 2007 which stipulated the established case law rule. It provides that ‘if a dismissal lacks objectively reasonable grounds and is not considered to be appropriate in general societal terms, it is treated as an abuse of rights and is invalid’. Under this doctrine of abusive dismissal, the effect of abusive dismissal is to makes the abusive dismissal invalid and then the courts deliver a declaratory judgment confirming the status of the dismissed worker as the worker of the employer and order of backpay. This remedial rule has a deterrent effect on arbitrary dismissals, and is the most successful aspect of Japanese unfair dismissal law. There is, however, a fatal defect. The Japanese unfair dismissal law does not have effective procedures to resolve dismissal disputes that are prompt, low cost and easy to use. The most necessary thing is to build the effective procedure to resolve dismissal disputes for all the dismissed workers. If this reform is realised, it will provide much more dismissed workers than before with the effective remedies for abusive dismissals and further a deterrent effect of the Article 16 of the LCA on arbitrary dismissals.","PeriodicalId":88025,"journal":{"name":"King's law journal : KLJ","volume":"27 1","pages":"228 - 247"},"PeriodicalIF":0.0,"publicationDate":"2022-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86423802","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-04DOI: 10.1080/09615768.2022.2095695
G. Anderson
The 50th anniversary of the enactment of unfair dismissal law in the United Kingdom precedes that of New Zealand’s by only a few months. As was the case in the United Kingdom, New Zealand introduced unfair dismissal legislation, generally referred to in New Zealand as ‘personal grievance’ protections, as part of a general reform of its industrial law in 1973 in the Industrial Relations Act (‘1973 Act’). This Act initiated two decades of legal reforms that moved New Zealand’s labour law away from the century-long, collectively-centred, industrial conciliation and arbitration system to a system that became increasingly individualised, juridified and rooted in the classical common law rules governing of the contract of employment. While the debates leading up to 1973 reform commenced shortly after the ILO’s adoption of Recommendation 119, it seems that concerns with employment security had little to do with the introduction of the personal grievance provisions. The key concern, as reflected in the Parliamentary debates, was the level of industrial action associated with disputes over disciplinary action taken by employers This concern was reflected in the wide definition of a ‘personal grievance’which extended beyond dismissals to encompass a wide range of other disadvantageous actions taken by employers. A ‘personal grievance’ was defined in the 1973 Act as:
{"title":"Employment Protection in New Zealand: 49 Years of Personal Grievance Law","authors":"G. Anderson","doi":"10.1080/09615768.2022.2095695","DOIUrl":"https://doi.org/10.1080/09615768.2022.2095695","url":null,"abstract":"The 50th anniversary of the enactment of unfair dismissal law in the United Kingdom precedes that of New Zealand’s by only a few months. As was the case in the United Kingdom, New Zealand introduced unfair dismissal legislation, generally referred to in New Zealand as ‘personal grievance’ protections, as part of a general reform of its industrial law in 1973 in the Industrial Relations Act (‘1973 Act’). This Act initiated two decades of legal reforms that moved New Zealand’s labour law away from the century-long, collectively-centred, industrial conciliation and arbitration system to a system that became increasingly individualised, juridified and rooted in the classical common law rules governing of the contract of employment. While the debates leading up to 1973 reform commenced shortly after the ILO’s adoption of Recommendation 119, it seems that concerns with employment security had little to do with the introduction of the personal grievance provisions. The key concern, as reflected in the Parliamentary debates, was the level of industrial action associated with disputes over disciplinary action taken by employers This concern was reflected in the wide definition of a ‘personal grievance’which extended beyond dismissals to encompass a wide range of other disadvantageous actions taken by employers. A ‘personal grievance’ was defined in the 1973 Act as:","PeriodicalId":88025,"journal":{"name":"King's law journal : KLJ","volume":"58 1","pages":"278 - 297"},"PeriodicalIF":0.0,"publicationDate":"2022-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91214546","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-04DOI: 10.1080/09615768.2022.2106677
Marilyn J. Pittard
Against the historical backdrop of some protection against unfair dismissal at State level, this article explores the chequered path to ‘a fair go all round’ in Federal unfair dismissal protection for employees in Australia, initially through awards (and the foundation laid by the federal industrial tribunal) in 1984 to legislative provisions enacted by the Federal Parliament in 1993. The vicissitudes of the Federal statutory unfair dismissal regime are scrutinised: first its virtual dismantling by a conservative government in 2005 and then its revival by a Labor government in the Fair Work Act 2009 (Cth). The article analyses the nature of the unfair dismissal jurisdiction legislatively conferred on the industrial tribunal, protecting employees against ‘harsh, unjust or unreasonable’ dismissal. It argues that, while there is no clamour by employers or unions for a major overhaul of the unfair dismissal laws, legislative reform is required to promote more vigorously a ‘fair deal’ for Australian workers, especially for currently excluded categories of workers (such as gig workers and dependent contractors), and to improve access to justice in dismissal.
{"title":"A Fair Deal? Justice in Dismissal in Australia","authors":"Marilyn J. Pittard","doi":"10.1080/09615768.2022.2106677","DOIUrl":"https://doi.org/10.1080/09615768.2022.2106677","url":null,"abstract":"Against the historical backdrop of some protection against unfair dismissal at State level, this article explores the chequered path to ‘a fair go all round’ in Federal unfair dismissal protection for employees in Australia, initially through awards (and the foundation laid by the federal industrial tribunal) in 1984 to legislative provisions enacted by the Federal Parliament in 1993. The vicissitudes of the Federal statutory unfair dismissal regime are scrutinised: first its virtual dismantling by a conservative government in 2005 and then its revival by a Labor government in the Fair Work Act 2009 (Cth). The article analyses the nature of the unfair dismissal jurisdiction legislatively conferred on the industrial tribunal, protecting employees against ‘harsh, unjust or unreasonable’ dismissal. It argues that, while there is no clamour by employers or unions for a major overhaul of the unfair dismissal laws, legislative reform is required to promote more vigorously a ‘fair deal’ for Australian workers, especially for currently excluded categories of workers (such as gig workers and dependent contractors), and to improve access to justice in dismissal.","PeriodicalId":88025,"journal":{"name":"King's law journal : KLJ","volume":"24 1","pages":"248 - 277"},"PeriodicalIF":0.0,"publicationDate":"2022-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82800592","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-04DOI: 10.1080/09615768.2022.2092938
C. Estlund
Fifty years after the United Kingdom adopted the principle of fairness in dismissals, the United States remains a global outlier in its continuing adherence to the presumption of ‘employment-at-will’ (EAW). In 49 out of 50 states, absent an agreement ensuring job security, employees can be fired without notice at any time and without any reason. The original version of EAW was stark indeed: Employers could terminate employment ‘for good cause, for no cause, or even for cause morally wrong, without thereby being guilty of a legal wrong’. For several decades in the early twentieth century, that principle was elevated to constitutional status as a near-sacrosanct dimension of the ‘liberty of contract’. In that benighted era, the Supreme Court held it unconstitutional—that is, ‘not within the functions of government’—for either Congress or the state legislatures to constrain employers’ right to hire and fire at will. In striking down a statute prohibiting the discharge of an employee based on union membership, the Court could not have been more clear: Absent a contract
{"title":"Wrongful Discharge Law in the Land of Employment-at-will: A US Perspective on Unjust Dismissal","authors":"C. Estlund","doi":"10.1080/09615768.2022.2092938","DOIUrl":"https://doi.org/10.1080/09615768.2022.2092938","url":null,"abstract":"Fifty years after the United Kingdom adopted the principle of fairness in dismissals, the United States remains a global outlier in its continuing adherence to the presumption of ‘employment-at-will’ (EAW). In 49 out of 50 states, absent an agreement ensuring job security, employees can be fired without notice at any time and without any reason. The original version of EAW was stark indeed: Employers could terminate employment ‘for good cause, for no cause, or even for cause morally wrong, without thereby being guilty of a legal wrong’. For several decades in the early twentieth century, that principle was elevated to constitutional status as a near-sacrosanct dimension of the ‘liberty of contract’. In that benighted era, the Supreme Court held it unconstitutional—that is, ‘not within the functions of government’—for either Congress or the state legislatures to constrain employers’ right to hire and fire at will. In striking down a statute prohibiting the discharge of an employee based on union membership, the Court could not have been more clear: Absent a contract","PeriodicalId":88025,"journal":{"name":"King's law journal : KLJ","volume":"32 1","pages":"298 - 317"},"PeriodicalIF":0.0,"publicationDate":"2022-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81519185","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-04DOI: 10.1080/09615768.2022.2137891
K. Ewing, Marilyn J. Pittard
{"title":"Editors’ Introduction","authors":"K. Ewing, Marilyn J. Pittard","doi":"10.1080/09615768.2022.2137891","DOIUrl":"https://doi.org/10.1080/09615768.2022.2137891","url":null,"abstract":"","PeriodicalId":88025,"journal":{"name":"King's law journal : KLJ","volume":"8 1","pages":"147 - 150"},"PeriodicalIF":0.0,"publicationDate":"2022-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81868159","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-04DOI: 10.1080/09615768.2022.2093620
D. Brodie
The scheme of statutory protection in the United Kingdom established by the law of unfair dismissal in the Industrial Relations Act 1971 (UK) is sensitive to the need to accommodate the realities of the different ways in which a working relationship might come to an end. Since 1974, the view has rightfully been taken that it was not enough to regulate situations involving dismissals as generally understood where the decision to terminate is one taken and communicated by the employer. Parliament recognised that the employer’s behaviour might trigger severance of the relationship at the hands of the employee. Employees may, in response to an intolerable state of affairs, simply resign and have no intention of returning. The common law would not regard this as constituting a dismissal but it was, nevertheless, important that the employer’s behaviour still be subject to scrutiny and that the employee be furnished with a remedy should their complaint be upheld. The foregoing considerations led to the borrowing of the concept of constructive dismissal from the law of redundancy payments. Paragraph 5 (2) of Schedule 1 of the Trade Union and Labour Relations Act 1974 (UK) extended the meaning of dismissal to include situations where ` the employee terminates that contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer’s conduct. Section 23 of the 1971 Act (which defined dismissal for the purposes of unfair dismissal) had failed to make provision in that regard. Thus, the employee who resigns in response to the employer’s wrongful conduct is regarded as having being dismissed for the purposes of an unfair dismissal action. In my view, the introduction of constructive dismissal was an admirable step. It provides the beleaguered employee with a measure of empowerment and allows them to bring an unsatisfactory situation to an end whilst, at the same, affording a means of access to an employment tribunal. The way in which constructive dismissal is expressed
{"title":"Constructive Dismissal: The Contractual Maze","authors":"D. Brodie","doi":"10.1080/09615768.2022.2093620","DOIUrl":"https://doi.org/10.1080/09615768.2022.2093620","url":null,"abstract":"The scheme of statutory protection in the United Kingdom established by the law of unfair dismissal in the Industrial Relations Act 1971 (UK) is sensitive to the need to accommodate the realities of the different ways in which a working relationship might come to an end. Since 1974, the view has rightfully been taken that it was not enough to regulate situations involving dismissals as generally understood where the decision to terminate is one taken and communicated by the employer. Parliament recognised that the employer’s behaviour might trigger severance of the relationship at the hands of the employee. Employees may, in response to an intolerable state of affairs, simply resign and have no intention of returning. The common law would not regard this as constituting a dismissal but it was, nevertheless, important that the employer’s behaviour still be subject to scrutiny and that the employee be furnished with a remedy should their complaint be upheld. The foregoing considerations led to the borrowing of the concept of constructive dismissal from the law of redundancy payments. Paragraph 5 (2) of Schedule 1 of the Trade Union and Labour Relations Act 1974 (UK) extended the meaning of dismissal to include situations where ` the employee terminates that contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer’s conduct. Section 23 of the 1971 Act (which defined dismissal for the purposes of unfair dismissal) had failed to make provision in that regard. Thus, the employee who resigns in response to the employer’s wrongful conduct is regarded as having being dismissed for the purposes of an unfair dismissal action. In my view, the introduction of constructive dismissal was an admirable step. It provides the beleaguered employee with a measure of empowerment and allows them to bring an unsatisfactory situation to an end whilst, at the same, affording a means of access to an employment tribunal. The way in which constructive dismissal is expressed","PeriodicalId":88025,"journal":{"name":"King's law journal : KLJ","volume":"64 1","pages":"151 - 168"},"PeriodicalIF":0.0,"publicationDate":"2022-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79874394","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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