Font Size: a A A

A Study Of The Constructive Dismissal System In United Kingdom

Posted on:2019-11-05Degree:MasterType:Thesis
Country:ChinaCandidate:H ZhangFull Text:PDF
GTID:2416330596452354Subject:Social law
Abstract/Summary:PDF Full Text Request
In the United Kingdom,the constructive dismissal was originally a system of cases formed by common law,in which the courts followed the‘principle of non-intervention'in the adjudication of labour disputes.according to the common law,when an employer's conduct may be a serious breach of the basis of a labour contract,or it may convey a reluctance to be bound by one or more of the basic conditions of the labour contract,the employee is entitled to consider himself subjected to the constructive dismissal and to exercise his right to terminate the employment relationship.and appeal to the court for relief.In Statute law,the trade Union and Labour Relations Act of 1974 formally establishes the constructive dismissal,The act formally introduces a constructive dismissal based on‘employer's conduct'in Listing 1,5th(2)(c),which is inherited by the 1996 Employment Rights Act(Employment Rights Act,referred to as ERA),which stipulates in article 95th(1)(c):The employee is entitled to terminate the labor contract without notice of the employer's conduct.In statutory law,the constituent elements of constructive dismissal are as follows:first,the employer's conduct constitutes an actual violation of the obligation to the labor contract or imminent violation,and secondly,the degree of violation is serious to the‘core content of the contract',which makes it impossible for the employee to continue to perform the contract,The last of these acts completely destroys the mutual trust and trust in the labor relations;Thirdly,there is a direct causal relationship between the employee's separation and the specific breach mentioned by the employer;four,the employee has no‘excessive delay'to take the termination of the Contract Act.Among the above four elements,‘the core content of the contract'and‘excessive delay'have become two important issues in determining the presumption of dismissal.In the United Kingdom,the idea of Statute law is not the same as the common law,which is based on the principle of laissez-faire and the law of enactment is not,so the law will be strictly interpreted when the court hears the case.The consequent problem is that the constructive dismissal is accepted by the common law after it has been established by statute.In the sharp case of December 1977,the Court of Appeal confirmed that the employer had violated the common law‘implied terms of mutual confidence'and could become the basis for employees to assert the constructive dismissal in the statute.In addition,in terms of employer liability,the constructive dismissal does not necessarily lead to legal relief,since the constructive dismissal is a subordinate concept of unfair dismissal,and only if the constructive dismissal is unfair,and Whether the employee has a fault and other factors should be taken into account,employees may seek legal relief.The main relief for constructive dismissal is money compensation.In China,the constructive dismissal system is mainly reflected in the article 38~thh of Labor contract Law,by listing several types of constructive dismissal,if it exists above situation,When the law gives the employee the right to resign immediately,the employee may claim the economic compensation for dismissal according to the article46th of the labor contract law.But these changes in the field of labor relations,only a few are expressly prohibited by law,and employees have the right to terminate unilateral contracts;Most laws still provide a principle that,in cases where an employee chooses to leave and requires the employer to pay the financial compensation,the employer often takes the initiative to resign as a defence,in such situations,how to determine the properties of employees'leaving,how to regulate the behavior of employers to exercise the right to manage,is related to the search for labor protection and business freedom of the two interests of the balance,these questions are very valuable for research.This paper begins with a review of the legislative establishment process of the constructive dismissal in the United Kingdom from two aspects of common law and statute,and then gives a detailed interpretation of the constructive dismissal in Britain from the point of view of the constituent elements and the fact cognizance,and narrates the burden of proof and the examination standard respectively.In order to understand the constructive dismissal in the United Kingdom is how to determine;The third part explores the concrete types and remedies of the constructive dismissal in the UK,and finally,on the basis of summarizing the constructive dismissal in the United Kingdom and combining the present situation of legislation and judicial practice of the constructive dismissal in our country,This paper puts forward the insufficient of our system and propose some measures to improve our system.
Keywords/Search Tags:United Kingdom, Constructive Dismissal, Article 38th of the Labor Contract Law
PDF Full Text Request
Related items