What’s wrong with dismissal law? How can the law be reformed to safeguard against the effects of dismissal?

This thesis explores dismissal law in England and Wales at a sociolegal level. It uses existing international theory and data and responses from 38 study participants to identify the health, social, and family effects of dismissal. The theory reveals that work transcends several aspects that are central to daily living. It reveals critical social and economic dimensions, which are both related to health. The data identifies considerable adverse consequences arising from dismissal, which impact societal stability, highlighting the need for dismissal to be understood as a social phenomenon. It contextualises these findings against the dismissal law system to identify any weaknesses and suggest reforms to offer employees better protection from dismissal and its aftermath. Analysis of the common law and the contract of employment reveals ingrained biases that have benefitted employers at the expense of workers and have damaged job security. In reviewing how dismissal law does not fully protect employees, economic and capitalist mentalities towards employment are revealed, which have had the effect of harming the discourse on progressive advancement in dismissal law. The thesis highlights the lack of clear-cut evidence on the claim that dismissal law is bad for the economy, instead offering alternative economic explanations, suggesting that the legislature must look beyond economics to the identifiable consequences of dismissal. In doing so, the thesis argues that full recognition and protection of employees’ interests require structural changes. These changes must come from the legislature and judiciary. It argues that the state should play an active role in mitigating the effects of dismissal through progressive welfare policies, with the potential for Universal Basic Income to address the wide-ranging consequences of financial detriment following dismissal. In addition, it argues that the government must take a less restrictive approach to trade unions, which offer employees vital job security and reduce dismissal probability. After this, the thesis critically analyses access to justice, with evidence showing that the reduction in legal aid, the costs involved in bringing a claim, and the complex nature of the employment tribunal system have impacted the ability of claimants to get justice. It argues that the rule that employees must have worked for two years to be able to claim unfair dismissal lacks empirical support, is a significant barrier to justice, is discriminatory, and must be removed or shortened. It goes on to consider the common law approach to distress damages, arguing that the reluctance to permit such damages fails to fully recognise the social importance of dismissal and is based on an assumption that the employment relationship is akin to a commercial exchange rather than being relational. It proposes that this must change, with Canadian and New Zealand approaches offering a solution. After this, it shows that, in practice, the tests of fairness and reasonableness under section 98 of the Employment Rights Act 1996 afford too much latitude to an employer to dismiss a worker, are doctrinally flawed, and represent a bias in legislative and judicial thinking towards dismissal. Building on this, the thesis suggests several solutions to overcome this, considering comparative and theoretical approaches.

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