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Employment LawEmployment Law

Peter ForsterPeter ForsterBMA NW CentreBMA NW Centre

March 2008March 2008

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Employment ContractsEmployment Contracts

What is a Contract?What is a Contract?

Employment Employment ContractContract

Terminating a Terminating a ContractContract

Varying a ContractVarying a Contract

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What is a contractWhat is a contract

OfferOffer AcceptanceAcceptance ConsiderationConsideration Intention to be Intention to be

boundbound Terms are certainTerms are certain

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Contract TermsContract Terms

Express termsExpress terms

Implied terms Implied terms

Incorporated termsIncorporated terms

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IMPLIED TERMS – Employers(1)IMPLIED TERMS – Employers(1)

To pay wagesTo pay wages To provide supportTo provide support Not to treat Not to treat

employees in an employees in an arbitrary/vindictive arbitrary/vindictive mannermanner

To provide a safe To provide a safe system of worksystem of work

To inform employees To inform employees of important decisionsof important decisions

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IMPLIED TERMS – Employers(2)IMPLIED TERMS – Employers(2)

To take reasonable To take reasonable carecare

To allow access to To allow access to grievance proceduresgrievance procedures

To maintain trust and To maintain trust and confidence.confidence.

To give support To give support against harassment.against harassment.

Not to undermine a Not to undermine a supervisors authority.supervisors authority.

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IMPLIED TERMS - EmployeesIMPLIED TERMS - Employees To co-operate with To co-operate with

employeremployer To obey reasonable and To obey reasonable and

lawful instructionslawful instructions To exercise reasonable To exercise reasonable

care and skillcare and skill To act in good faith and To act in good faith and

fidelityfidelity To adapt to reasonable To adapt to reasonable

changeschanges To maintain a relationship To maintain a relationship

of trust and confidenceof trust and confidence

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Written Particulars of EmploymentWritten Particulars of Employment

Names Names DateDate Continuous employmentContinuous employment Job title or brief descriptionJob title or brief description Pay, scale, intervalPay, scale, interval Place(s) of workPlace(s) of work Hours of workHours of work PensionPension Holiday entitlementHoliday entitlement

PLUS…….PLUS……. disciplinary rulesdisciplinary rules grievancegrievance

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Components of ContractComponents of Contract.. Written Statement Written Statement

of contractof contractAlso.Also. Job AdvertisementJob Advertisement Letter of Letter of

AppointmentAppointment Job DescriptionJob Description Collective Collective

agreements agreements Implied termsImplied terms

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Contract ProceduresContract Procedures

To ensure as little ambiguity as possible in the employment relationship ensure that;

contracts are in writing

terms are stated clearly and concisely

reference is made to ‘incorporated’ documents;

receipt of documents is acknowledged

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What is Dismissal?What is Dismissal?

Employer terminates Employer terminates the contractthe contract

Expiry of a fixed term Expiry of a fixed term contractcontract

RedundancyRedundancy Constructive dismissalConstructive dismissal Refusal to allow Refusal to allow

employees to return employees to return following pregnancyfollowing pregnancy

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Fair DismissalFair Dismissal

Five potentially Five potentially fair reasonsfair reasons

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Fair reasons for dismissalFair reasons for dismissal1. Capability.1. Capability.

2. Conduct.2. Conduct.

3. Redundancy.3. Redundancy.

4. Contravention of a 4. Contravention of a statutory statutory enactment.enactment.

5. “Some other 5. “Some other substantial reason”.substantial reason”.

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EXAMPLES - S.O.S.R.EXAMPLES - S.O.S.R.

Third party pressureThird party pressure Personality clashPersonality clash Imprisonment.Imprisonment. Dismissing replacement employeesDismissing replacement employees Dismissal of spouseDismissal of spouse Misrepresenting facts on CV.Misrepresenting facts on CV. To make room for an employers sonTo make room for an employers son A refusal to accept changes in terms and A refusal to accept changes in terms and

conditionsconditions

Most dismissals under this heading arise because the Most dismissals under this heading arise because the employer is taking action to protect his/her business employer is taking action to protect his/her business interests interests

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Automatic Unfair DismissalAutomatic Unfair Dismissal taking leave for family taking leave for family

reasons reasons performing certain health performing certain health

and safety activities or and safety activities or functions as a trustee of an functions as a trustee of an occupational pension occupational pension scheme or functions as an scheme or functions as an employee representative employee representative

the making of a protected the making of a protected disclosure disclosure

asserting a statutory right asserting a statutory right

taking certain steps under taking certain steps under the NMWA the NMWA

seeking to benefit from tax seeking to benefit from tax credits credits

holding the status of a holding the status of a part-time worker part-time worker

participating in ‘protected’ participating in ‘protected’ industrial action or in trade industrial action or in trade union membership or union membership or activities activities

spent convictionsspent convictions

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Constructive DismissalConstructive Dismissal

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Constructive Dismissal.

“If an employer is guilty of conduct which is a significant breach going to the root of the contract, or which shows an intention no longer to be bound by one more essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”

Western Excavating v Sharp .(1978)

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Constructive DismissalConstructive Dismissal

Unilateral change in Unilateral change in pay.pay.

Failure to pay salary Failure to pay salary increase.increase.

Change in job duties.Change in job duties. Downgrading.Downgrading. Imposing disciplinary Imposing disciplinary

penalty without penalty without complying with complying with procedureprocedure

Breach of trust and Breach of trust and confidenceconfidence

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Mutual trust and confidenceMutual trust and confidence

EXAMPLESEXAMPLES Abuse and insults - calculated Abuse and insults - calculated

to destroy the relationshipto destroy the relationship

Reporting an employee to the Reporting an employee to the police for dishonesty without police for dishonesty without an adequate basisan adequate basis

Having a highly critical letter Having a highly critical letter of an employee typed by an of an employee typed by an office junioroffice junior

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Constructive DismissalConstructive Dismissal- ‘Last Straw’ Principle.- ‘Last Straw’ Principle.

“……“……the last action of the the last action of the employer which leads to employer which leads to the employee leaving need the employee leaving need not itself be a breach of not itself be a breach of contract; the question is, contract; the question is, does the cumulative series does the cumulative series of acts taken together of acts taken together amount to a breach of the amount to a breach of the implied term”implied term”

Squeezing the employee Squeezing the employee out.out.

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Variation of ContractVariation of Contract

Agreed changes: either orally or in writing through collective bargaining employee works in

accordance withnew arrangements without objecting

term allowing for variation

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Business Business reorganisationreorganisation..

““Employers must not….be put Employers must not….be put in a position where, through in a position where, through the wrongful refusal of their the wrongful refusal of their employee to accept change, employee to accept change,

they are prevented from they are prevented from introducing improved business introducing improved business

methods in furtherance of methods in furtherance of seeking success for their seeking success for their

enterprise,”enterprise,”

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Fair Fair ProceduresProcedures

Informing the Informing the employeeemployee

Thorough and careful Thorough and careful investigationinvestigation

Opportunity to Opportunity to prepare caseprepare case

Disciplinary hearingDisciplinary hearing Opportunity to present Opportunity to present

casecase Right to be Right to be

representedrepresented Right of appealRight of appeal Appropriate penalty.Appropriate penalty.

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Procedural shortfalls…….Procedural shortfalls…….

“Where employees won their claim, their success related almost without exception to procedural shortcomings on the part of the employer”

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“Small Firms are particularly vulnerable to defects in their procedures - if they have a procedural approach at all - and this

failure leads to unfair dismissal claims”

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DISMISSAL FAILINGSDISMISSAL FAILINGS A “warning” not made explicit.A “warning” not made explicit.

No procedure at all.No procedure at all.

Procedures not applied in full.Procedures not applied in full.

Procedure contrary to the employers Procedure contrary to the employers own rules.own rules.

Dismissed during an argument.Dismissed during an argument.

Insufficient time to rectify Insufficient time to rectify shortcomings.shortcomings.

Over hasty use of procedure.Over hasty use of procedure.

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Disciplinary MeetingsDisciplinary Meetings

““[The finance director] said [The finance director] said that the applicant was to that the applicant was to come to a meeting at his come to a meeting at his office the following day, and office the following day, and at that meeting he would at that meeting he would ‘‘tear up his contract and tear up his contract and shove it up his *!*!*!*’. shove it up his *!*!*!*’.

((STOCKPORT COUNTY F.C.-v-STOCKPORT COUNTY F.C.-v-BERGARA. 30/6/97.EAT. 625/96)BERGARA. 30/6/97.EAT. 625/96)

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Compensation (from 1 Feb Compensation (from 1 Feb 2008)2008)

Unfair Dismissal - £63,000 max*Unfair Dismissal - £63,000 max* Redundancy - £9,900 maxRedundancy - £9,900 max Discrimination (race, sex, disability, Discrimination (race, sex, disability,

age) – No Limitage) – No Limit* * No limit where employee is dismissed unfairly or selected for No limit where employee is dismissed unfairly or selected for

redundancy for reasons connected with H&S matters or ‘whistle redundancy for reasons connected with H&S matters or ‘whistle blowing’blowing’

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Statutory disciplinary & grievance Statutory disciplinary & grievance proceduresprocedures

Effective from October 2004 but soon to Effective from October 2004 but soon to be repealed!be repealed!

Introduced substantial changes to the law Introduced substantial changes to the law on unfair dismissal & the admissibility of on unfair dismissal & the admissibility of tribunal claimstribunal claims

Seek to ensure that no major decisions Seek to ensure that no major decisions affecting an employee’s employment are affecting an employee’s employment are made without basic procedural steps made without basic procedural steps having first taken place. having first taken place.

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Most common causes of Most common causes of disciplinary actiondisciplinary action

Absenteeism.Absenteeism. Poor performance.Poor performance. Time keeping.Time keeping. Disobedience.Disobedience. Dishonesty.Dishonesty. Bad language.Bad language. Smoking.Smoking. Drink and drugs.Drink and drugs.

Fighting.Fighting. Harassment.Harassment. Breakdown of working Breakdown of working

relationship.relationship. Disloyalty.Disloyalty. Third party pressure.Third party pressure. Conduct outside Conduct outside

employmentemployment Personal appearance.Personal appearance.

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AbsenteeismAbsenteeism

Unauthorised Unauthorised absence.absence.

Overstaying leave.Overstaying leave. Long term ill health Long term ill health

absence.absence. Persistent short Persistent short

term absence.term absence.

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Persistent short-term illnessPersistent short-term illness fair review of attendance fair review of attendance

and reasonsand reasons return to work interviewreturn to work interview operate disciplinary operate disciplinary

procedures reasonably not procedures reasonably not oppressivelyoppressively

assess effect on other assess effect on other employees employees

obtain medical reportsobtain medical reports past attendance recordpast attendance record future attendancefuture attendance no set tariff of daysno set tariff of days

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Long term illnessLong term illness

regular contactregular contact when is return when is return

likelylikely is alternative work is alternative work

availableavailable medical evidencemedical evidence job can’t be held job can’t be held

open indefinitelyopen indefinitely

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Personal AppearancePersonal Appearance

subjective opinion - subjective opinion - not enoughnot enough

the reason for the reason for requirementrequirement

contractcontract employees reason employees reason

for objectingfor objecting enforcing enforcing

standards standards

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Poor PerformancePoor Performance

skill, aptitude, skill, aptitude, health or other health or other physical or physical or mental qualitymental quality

setting standardssetting standards length of servicelength of service previous previous

performanceperformance extent of poor extent of poor

performanceperformance

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Performance monitoring and Performance monitoring and standardsstandards

careful recruitment careful recruitment and selectionand selection

standards explainedstandards explained accurate/up to date accurate/up to date

job descriptionjob description performance performance

appraisalappraisal promotion - failure to promotion - failure to

make the grademake the grade

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Breakdown of working Breakdown of working relationshipsrelationships

is it irredeemableis it irredeemable can the situation can the situation

be improved be improved (counselling)(counselling)

have alternatives have alternatives been considered been considered (transfer)(transfer)

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DisloyaltyDisloyalty

implied duty of implied duty of fidelityfidelity

breach of breach of confidenceconfidence

working in working in competitioncompetition

soliciting soliciting customerscustomers

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Business ReorganisationBusiness Reorganisation

work remains the same - different work remains the same - different mode of performancemode of performance

sound business reasonsound business reason sensible reaction to employees sensible reaction to employees

refusalrefusal fullest possible consultationfullest possible consultation managerial prerogativemanagerial prerogative are new terms reasonableare new terms reasonable consider redundancyconsider redundancy

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Getting AdviceGetting Advice

BMA – Regional BMA – Regional Centres Centres www.bma.org.ukwww.bma.org.uk

ACAS – Helpline ACAS – Helpline 08457 474747 08457 474747 www.acas.org.ukwww.acas.org.uk

Dept Of Trade and Dept Of Trade and Industry -Industry -www.dti.gov.ukwww.dti.gov.uk

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ENDSENDS