NCJ Number
94903
Journal
Cornell International Law Journal Volume: 16 Issue: 1 Dated: (Winter 1983) Pages: 1-47
Date Published
1983
Length
47 pages
Annotation
This article examines practice under British law and American labor arbitration agreements relating to the dismissal of an employee for misconduct or incapability.
Abstract
Recent developments in British law indicate an increasing deference towards the views and judgments of management in unfair dismissal cases. Although many of these developments impede the realization of substantive justice, the present state of the British unfair dismissal system does provide distinct procedural protections. Arbitration in the United States, on the other hand, exhibits a continuing commitment to the realization of substantive justice. Unlike British industrial tribunals, American arbitrators generally engage in an objective examination of the basis of a discharge and independently assess the propriety of the discharge. Furthermore, arbitration in the United States requires an employer to prove that just cause exists for a discharge decision, while the burden of providing the fairness of discharge is neutral under the British system. Finally, American arbitrators frequently use reinstatement as a remedy in unfair dismissal cases, while the British dismissal proceedings presently function primarily as a guarantor of severance pay where a dismissal is unfair. The United States should adopt a comprehensive statute permitting all employees to challenge the propriety of their dismissals. In Great Britain, there should be an adherence to an objective standard of reasonableness and a greater concern with the substantive fairness of a discharge. Numerous references are included.