UNFAIR DISMISSAL AND REINSTATEMENT

Published date01 September 1969
DOIhttp://doi.org/10.1111/j.1468-2230.1969.tb01232.x
Date01 September 1969
UNFAIR DISMISSAL AND
REINSTATE'MENT
BRITAIN is almost alone among the advanced countries of Europe
and America ,in providing
no
legal remedy for arbitrary
(or
66
unfair
")
dismissals, as distinct from wrongful dismissals,
i.e.,
in
breach of contract. At common law an employee dismissed in breach
of contract can recover nothing more than damages equal to what
he would have earned in the proper period of notice, whatever the
circumstances
l;
and the courts of equity have generally though not
always refused to order specific performance of any contract for
personal services.
Most European legal systems, and that of the U.S.A., had
reached a similar position by the end of the nineteenth century, and
h
most of them the situation has been remedied to a greater
or
less
extent by legislation.
In
1962
the
ILO
conducted an extensive
survey of some sixty-five countries and in the following year the
General Conference produced the well-known Recommendation
No.
119.2
Three years later the National Joint Advisory Committee of
the Ministry of Labour produced a report which surveyed the
existing voluntary dismissal procedures in Britain and briefly
described the main foreign legislation.
In
effect
it
recommended
that nothing should be done.3 Following the Report of the Donovan
Commission, the Government's recent White Paper proposed that
there should be a general jurisdiction to give a remedy against unfair
dismissal vested in thc existing Industrial Tribunals with the
possibility of exemption for suitable schemes set up by representa-
tive organisations of the workers and the employers in any given
industry. The Government are
now
engaged
in
consulting with
the T.U.C., the C.B.I. and other interested
organ is at ion^.^
The new jurisdiction will raise some interesting problems both of
legislation and of interpretation. The fundamental principles,
defining the right to be protected, will presumably follow the general
lines of the
ILO
Recommendation:
1
Addis
v.
The Gramophone
Co.
[1909]
A.C.
488.
2
Reports VII(1) and VII(2); Recommendation
No.
119
on
Termination
of
Employment at the Initiative
of
the Employer; the latter accepted with
reservations by the British Government in 1964 (Cmnd. 2548).
3
Dismissal Procedures, H.M.S.O. 1967, See
J.
Reid (1968)
31
M.L.R. 64 and
the present writer
in
(1968)
3
Bulletin
of
the Industrial
Law
Society
40.
4
Cmnd.
3888
("
In
place
of
sfrife
"),
paras. 103-104.
5
Even the Conservative Party's oddly titled
'I
Fair Deal at Work
"
accepted
that there should be some such jurisdiction. But by proposing that the
onus
of
proof should lie
on
the worker and denying any power to order reinstatement
they made certain that their scheme would be totally ineffective in practice
;
as the law
is
today in Prance where the same rules apply.
Cf.
G.
H.
Camerlynck and
G.
Lyon-Caen,
Droit
du
Travail
(3rd
ed., Dalloz, 1969).
pp. 157, 163.
532

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