Employment Law Problem Question
Title: EMPLOYMENT LAW :
In undertaking this essay, the writer will; identify the issues involved in Julia’s case scenario, define and explain those issues using relevant Law whilst applying them to Julia’s case. The writer will subsequently advice Julia and then conclude.
The legal issues identified in Julia’s case are; contract of employments and their variation, victimisation, wage deduction, breach of contract and available remedies such as unfair dismissal, constructive dismissals and wrongful dismissal.
‘A contract of employment is an agreement entered into by an employer and an employee under which they a have certain mutual obligations. They may be oral or written and may be indefinite or for fixed terms’[1]. There’ an offer and acceptance supported by consideration. Offer usually coming from the employer and acceptance may be by conduct i.e. turning in for work[2]. It follows that Julia entered into a contract of employment on turning up to work with Silkos in March 2004. The holiday term may not have been agreed by her at this time but where there is ambiguity as to the contract, the courts look at an advertisement and letter of appointment to spell out terms of the contract or to decide terms agreed as in Deeley v British Rail Engineering ltd[3] (and Pedersen b Camden London Borough)[4].
Julia may rely on the advertisement and any willing witnesses to their agreement on the issue of holiday. Practice of the parties are relevant to the courts, In Dunlop Tyres Ltd v Blowers[5], the practise of paying treble time existing over 30 yrs were considered.
The law requires that a written statement of terms be given to the employee within two months of starting work (as provided by The Contracts of Employment act 1973 and employment protection rights act 1996 (ERA)). Julia’s employer breached this rule, by being a month late to provide the statement, and only after Julia’ grievance process.
The statement must contain names of employer and employee, date of commencement of employment, brief description of the work, remuneration details, holidays, sickness coverage, pension rights, notice, disciplinary process e.t.c
To vary any contract there must be express or implied consent from both parties but it must be supported by consideration. Conduct may suffice from employee working under altered conditions.
Flexibility clauses such as ‘the employee will perform such duties as are from time to time assigned to him by the board of directors or managing director’[6] are to legally aid employers and employees in varying terms without legal problems, without these clauses, Donaldson LJ’s remarks in Janata Bank ldt v Ahmed[7], that ‘the continuously changing contract is unknown to law’[8]
Establishing variation is important and different from ending a contract, if an employer on his own enforces a variation without an employees consent, he breaks the contract of employment, and the employee is free to choose whether to accept the fundamental breach, and resign, or to carry on working and seek damages as was the case in Burdett-coutts v Hertfordshire[9]; Rigby v Ferodo ltd[10]. Julia may decide to end her employment this way as she may argue that she had not consented to the holiday term and the deduction/variation of her wages and working conditions.
It was held in these cases- Jones v associated Tunnelling Co. ltd[11]; Courtaulds Northern Spinning Ltd v Sibson and TGWU[12]; Aparau v ICELAND Frozen Foods plc[13] that failing to object to disadvantageous statement of terms is not acceptance of them especially where the terms are of no immediate practical importance. It suffices that even though Julia has been silent on the issue of the four week holiday, she has not accepted the term, but her conduct may imply that she consents. for example, she has worked for two years and must have taken annual holidays, this may be viewed as consent but she could still argue that she was not able to start another grievance process because she is feels victimised having done so in the past.
If terms are not agreed, the tribunal may confirm details given, amend or replace contract terms by substituted particulars as held in Mears v Safe car Security Ltd[14] and supported by the EPCA 1978, s 11, this power cannot be extended to holiday, holiday pay, sick pay, pensions or disciplinary rules where none existed by agreement between the parties because there is no requirement to include this in the contract, as held in England v British Telecommunications plc[15]. Julia is still protected by her statutory rights regarding these benefits.
If a deduction of wage has been made without employee’s consent, this is regarded as a fundamental breach of contract and termination of the same as held in Hogg v Dover College[16]. Following this, the Julia may claim termination if her wage has been deducted without her consent.
In Horrgan v Lewisham London Borough Council[17], Arnold J,said:
‘It is fairly difficult…………..and it is very necessary if one is to do so, to have very solid facts which demonstrate that it was necessary to give business efficacy to the contract,…. way of variation’[18].Silko’s may rely on this provision but will fail on the manner in which they are seeking to make the variation.
In Marriot v Oxford and District Cooperative Society[19], Lord Denning MR found that ‘……………….. By insisting on new terms to which he never agreed, the employer did..…. terminate the old contract of employment’.
‘….case law suggests that employers must make it clear that he is terminating one contract and offering another, otherwise there is a risk that the employee can claim in the courts of tribunals’ rights forgone under the old arrangement’[20]. It is arguable that by seriously changing the terms of Julia’s wages and responsibility, the employer may have brought an end to her employment.
In Sheet Metal Components ltd v Plumridge[21], Sir John Donaldson said; ‘ the courts have rightly been slow to find that there has been a consensual variation where an employee has been faced with the alternative of dismissal and where the variation has been adverse to his interests’, the same is the situation in Norwest Holst Group Administration Ltd v Harrison[22].Julia may strongly rely on these provisions.
In Burdett-Coutts v Hertfordshire County Council… an employer may end a contract by breach when seeking to vary the terms; the courts may interprete this as dismissal.
The House of Lords in Rigby v Ferodo Ltd[23]established that the employee must consent to termination, and reduction of wages is not automatic termination. Also in Miller v Hamworthy Engineering Ltd[24] . It is therefore advisable for employers to give proper notice to terminate one contract, before offering another, not doing so-as in Julia’s case- carries risk of an employee claiming for unfair dismissal.
‘It is implied into a contract of employment that an employer will provide and monitor for employees, so far as is reasonably practicable, a working environment that is reasonably suitable for the performance by them of their contractual duties’[25]. So in Waltons and Morse v Dorrington[26] it was held that an employer must not act in such a way as no reasonable employer would act’[27]. This case is supported by Clark v Nomura International plc[28], and Johnston v Bloomsbury Health Authority[29] and walker v Northumberland county council[30]. It appears that the employer has breached this implied contract term by ‘copying’ Julia’s grievance issue.
It is also implied into a contract of employment that an employer must take any action having regard to avoid ‘either imposing workload on the employee or acquiescing in the assumption by the employee of workload that was reasonably foreseeable may cause physical or mental injury’ Marshall specialist vehicles ltd. V Osborne[31].
This is clearly breached by increasing the expectation to meet the same targets with less number of people in her team e.t.c. Express and implied terms must be capable of coexistence in the contract without conflict (Johnstone v Bloomsbury Health Authority[32], Aspen v Webs Poultry and meat group (Holdings) ltd[33].Julia’s express term of three week holiday is not in compliance with her statutory right to a four week minimum, as other implied terms can be excluded except if there is any statutory restraint, such as the rights to guarantee pay, equal pay, notice and maximum working hours.
Section 27 of the ERA 1996 defines ‘wages’ as any sums payable by the employer to the worker in connection with the employment including ‘any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise’[34]..
A deduction of wages includes a failure or refusal to pay the amount agreed to be paid in exchange for employee’s work, Delaney v Staple[35] regardless of reason McCree v Tower Hamlets London Borough Council[36]. Even though Silko’s will breach the employment contract between her and Julia’s if her wages are deducted for valid economic reason. They must seek her consent in written form to obtain deduction.
In Discount Tobacco and Confectionery Ltd v Williamson[37] ,a retail case where it is permissible to reduce only a tenth of their daily wages with consent on missen items in the shop,It was held that the employers could deduct only in relation to the last event where consent was given. Potter v Hunt Contractors ltd[38] and Fairfield ltd v Skinner [39] It is illegal to contract out of this provision.
The working Time regulation 1998 came into force on 1 October 1998 and was designed to achieve, ‘a better balance between work and home’, ‘greater choice over hours of work’ and ‘improvement in health’[40].Regulation 13 of provides annual leave of four weeks minimum. It allows a worker to complain if he suffers action short of dismissal for pursuing his entitlement, and unfair dismissal is also available on the same principle. Julia may pursue her holiday rights following this.
According to Sex Discrimination Act 1975,s4(1)’ RRA 1976, s 2(1)’Unlawful victimisation arises where a person is treated less favourably because he; brings proceedings, gives evidence or information, alleges a contravention or otherwise acts under the equal pay, sex discrimination or race relations acts or intends to do any of these things’[41].
To succeed in a claim of victimisation the applicant must show that one of the acts above done by the applicant-such as bringing an earlier complaint of discrimination- has influenced the alleged victimiser in his unfavourable treatment of the applicant as was held in Aziz v Trinity Taxis ltd[42]. In Nagarajan v London regional transport[43] , His motives are unimportant according to the House of Lords.
Julia may seek redress under this provision on the basis that she was victimised because she instigated grievance proceedings in trying to assert her rights to her statement of particulars. She was made aware of her disadvantage for asserting these rights.
In Lindsay v alliance and Leicester plc[44], a person had made an application for promotion and had instituted a grievance on grounds unconnected with the Race Relations Act 1976. Chief constable of west Yorkshire police v khan[45] and commissioners of Inland Revenue v Morgan[46].
According to the acas paper, ‘consultation on the draft employment equality (age) regulations 2006 (July 2005)[47], firstly an action is taken, such as a complaint or allegation and secondly the person is treated less favourable because of such an action. Julia qualifies to claim victimisation on the basis of this provision.
Clearly, there have been significant breaches in Julia’s employment with Silko’s in ; her statutory rights to receive statement of particulars within two months, holiday rights, potential variation/termination of her contract with regards to reduction of team members and wages, victimisation for asserting her statutory rights e.t.c.
For all these breaches Julia is entitled to redress in the civil courts or the employment tribunals, in the form of damages for unfair dismissal and or wrongful dismissal by reason of constructive dismissal, redundancy e.t.c.
The Employment rights Act 1996, the Employment Act 2002 and The Employment Equality (Age) Regulations 2006 cover unfair dismissal. Basically employees can be dismissed unfairly.
Qualification for this right is by a working period of a year with the employers but there are exceptions, where; dismissal is connected to trade union membership or activities (Trade Union and Labour Relations (Consolidation) Act 1992) pregnancy of childbirth, maternity, adoption, paternity or parental leave, asserting a statutory right, claiming the national minimum wage and asserting rights under the working time regulations.
From these provisions, it is obvious that Julia qualifies for a claim on both the basis of a year qualification and automatically unfair reasons.
The act mentions fair reasons for dismissals as; capability or qualifications, conduct, redundancy, illegality or contravention of a statutory duty and some other substantial reason. There is no fair reason to dismiss Julia it appears.
An employer must act fairly and reasonably in dismissing an employee or may be faced with a successful claim for unfair dismissal regardless of fair reason for dismissal. The employers have not satisfied either of these criteria in Julia’s case.
A constructive dismissal occurs when an employee leaves a job but then claims that their employers left them no choice but to do so, either by their actions or by implication.
It is an unfair dismissal claim but the employee must prove that their employer’s behavior caused them to end the contract. Julia has every reason to institute unfair dismissal claim by reason of constructive dismissal because of the behavior of her employers. According to the trade union and labour relations consolidations act 1992, it is automatically unfair to dismiss an employee if they ‘indicated that they supported or did not support recognition of a union (or unions)’[48], clearly Julia did not support the union and may argue- on application for unfair dismissal- that she was victimized for this reason.
If an employee proves this behavior, the employer becomes guilty of wrongful dismissal and if unable to prove that the forced dismissal was fair, they become liable for unfair dismissal too. Statutes now suggest that the employee must raise a grievance at least before bringing the claim to the tribunal, which would eliminate constructive dismissal and warn the employers.[49]
Wrongful dismissal claim is for a breach of contract and can be brought by any employee, and only requires one month employment. Notice is required but depends largely on how long an employee has worked. After one month it is a week’s notice, after two years, it is one week’s notice for each complete year to a maximum of twelve weeks on and after twelve years.
The remedies for unfair dismissal are reinstatement, re-engagement and compensatory award.
Compensatory claim has two components, – the basic award which takes the age of the employee into question and has no minimum limit and the compensatory award which provides what is just and equitable as compensation, having regard to the loss suffered as a result of dismissal. It is now a maximum of 55,000 pounds, but in dismissals rendered unfair under the public Interest Disclosure Act 1998, there is no limit.[50]
For wrongful dismissal, the remedy are for breach of contract and is usually the [51]wages and benefits that the employee would have earned if due notice had been given (Radford v De Froberville[52], Shove v Downs Surgical plc[53].
The writer advices that Julia may firstly use the grievance procedure agreed on her contract first, but only if she feels comfortable with so doing, if not-and from the case scenario, it seems not- she still has a strong case for unfair dismissal regardless of the fact that she is ‘uncomfortable’ using the agreed grievance procedure-the tribunal will her reasons for ‘discomfort’ favorably. The suggested grievance procedure is taken favorably into account in granting awards for damages.
The writer will also advice her that compensatory award for damages in the case of an unfair dismissal claim is more generous than for wrongful dismissal and she may apply on the basis of constructive dismissal because if successful-and it appears she will-the employer will be unable to prove that the dismissal was fair, and will incur damages for unfair dismissal. Damages are then awarded.
She chooses between the employment tribunal and the civil courts, but the writer suggests she pursues this through the tribunal because of its less rigid procedures and costs. She must keep all records from the time of employment till the time of making the application, she must also be aware that there are time limits for bringing the claim to the tribunal but a generous time limit is given by the civil courts. The earlier the better for her because records and evidence do change.
Bibliography
Books
A.McColgan, Discrimination Law; text, cases and materials 2nd edition
P.CHANDLER, Waud’s Employment Law: The Practical Guide for Human Resource 14th edition,
J.Bowers, A practical approach to employment Law, seventh edition, oxford university press, New york,2005
G.Duddington,. John, Employment law, Pearson Education, 2003 GOULD, T. (2007) Unfair dismissal: a guide to relevant case law. 25th ed. London: LexisNexis Butterworths.
GUINAN, G. (2007) Do dismissals by the book. People Management. Vol 13, No 18, 6 September. p22
Journal articles
Vorste, G. School staff sacked for tying up student in classroom, published 15 February 2008 14:24
Consultation on the draft, Employment Equality (Age), Regulations 2006
Internet resources
Writer unknown, Previous misconduct counts in dismissal decisions, viewed on 18 February 2008 11:00
http://www.personneltoday.com/articles/2008/02/18/44427/case-of-the-week-previous-misconduct-counts-in-dismissal-decisions.html
Writers unknown, employment law resources for practitioners, viewed 18 February 2008 14:00,http://www.cipd.co.uk/subjects
Writers unknown, employment law resources for practitioners, viewed 18 February 2008 15:00http://www.hrmguide.co.uk/hrm/steele/index-2007.htm
Writers unknown, employment law resources for practitioners, viewed 18 February 2008 17:00http://www.hrmguide.co.uk/hrm/steele/index-2007.htm
Writers unknown, employment law resources for practitioners, viewed 18 February 2008 14:00 http://books.google.co.uk/
Writers unknown, employment law resources for practitioners, viewed 18 February 2008 14:00http://www.berr.gov.uk/files/file16397.pdf
