Distinguishing dismissal from other forms of termination
Distinguishing dismissal from other forms of termination

The following Employment practice note provides comprehensive and up to date legal information covering:

  • Distinguishing dismissal from other forms of termination
  • Expiry
  • Resignation
  • Mutual agreement or consent
  • Operation of law, including frustration
  • The doctrine of frustration
  • When incapacity that is not a disability can frustrate a contract
  • When incapacity that amounts to a disability can frustrate a contract

Distinguishing dismissal from other forms of termination

Termination occurs every time a contract comes to an end. As well as dismissal, termination includes:

  1. expiry (without renewal) of a fixed term or limited term

  2. resignation

  3. by mutual agreement and

  4. by operation of law

See our precedent Clauses — termination.

Expiry

Employment law makes no distinction between temporary and permanent employment. Contracts are either terminable by notice or they continue for a specified period (fixed term contracts) or until a specified event (limited term contracts). Failure to renew a fixed term or limited term contract when it ends is not a dismissal at common law but is a dismissal for the purpose of the unfair dismissal legislation, so the employer will have to show that there was a fair reason for the decision not to renew the contract.

Resignation

Resignation is when an employee decides to terminate his own contract — usually (but not necessarily) by giving the requisite contractual or statutory minimum notice. For unfair dismissal and other statutory purposes, a resignation is only treated as a dismissal:

  1. when it happens in circumstances amounting to constructive dismissal (see Constructive dismissal) or

  2. where the cause of the employee's resignation is the employer's threat to dismiss him (see Definition of dismissal in unfair dismissal)

Mutual agreement or consent

Many situations arise in which it suits both parties to end employment without observing the notice provisions

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