Employment Law 1 ver 2 - University of Wolverhampton Law 1.pdf · Study Unit 2: Contract of...

Distance Learning Module Planner

Employment Law 1

Course Code: LD2028 Module Leader: Margaret Walsh © University of Wolverhampton 2008 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, or stored in any retrieval system of any nature without either the written permission of the copyright holder, application for which should be made to the University of Wolverhampton, or a licence permitting restricted copying in the United Kingdom issued by the Copyright Licensing Agency. Any person who infringes the above in relation to this publication may be liable to criminal prosecution and civil claims for damages.

Contents

How to Use Your Module Planner

Topics Covered by Module

Skills to be Developed and Examined

Examinations

A Brief Guide to Study Skills

Introduction to Study Units

Reading List

Study Unit 1: A Contract of Service - Employee

Study Unit 2: Contract of Employment - Express Terms

Study Unit 3: Contract of Employment - Implied Terms

Study Unit 4: Contract of Employment - Variation of Terms

Study Unit 5: Termination of Contract of Employment and

Common Law Claims Arising Out of the Termination of the

Contract of Employment

Study Unit 6: Employment Tribunal Procedures

Study Unit 7: Unfair Dismissal Claims

Study Unit 8: Redundancy

Learning Project

Practice Question and Suggested Answer

Revision

Taking the Examination

Module Questionnaire

How to Use Your Module Planner

The Module Planner is vital to your studies. It divides the work in each area into Units, and shows you the minimum number of hours you should spend on each Unit, at the top right hand corner of the first page of each Study Unit, in order to understand the law involved. You should plan on devoting a minimum of 150 hours to each module you study. The section headed ‘Essential Reading’ contained in the Reading List and each Study Unit refers you to the materials with which you are provided. The materials listed in the Essential Reading are sufficient to enable you to complete the course very effectively. The section headed ‘General Reading’ lists other books which, if you wish, you can read to give you other approaches to the law. These books are not provided but you should be able to purchase them from Hammicks Legal Bookshop, whose address, telephone number and website details are provided in the General Reading section of the Reading List. They are not essential for you to be successful on the course, but they may help to give you a different viewpoint of the law involved in this module. The Module Planner guides you through the course. Work through it logically, and in order, and make sure you understand one Unit before you move on to the next. At the end of each Unit you will find a set of Self-Study Questions. Test yourself on these and make sure you understand them before you move onto the next Unit. At the end of the Study Units you will find the Learning Project. A compulsory question will be set in the examination in Section A of your paper on all or parts of the material covered by the Learning Project, and this will count for 50 per cent of your overall grade, so it is essential that you ensure you study and understand all aspects covered by it. The Study Units which relate to the Learning Project have been indicated to guide you through this material while you study. The Module Planner is your guide to the topic of English law that it covers. Have it with you as you study and you will make the most of this opportunity to obtain the best law degree of which you are capable.

With this Module Planner you should have the following materials:

Employment Law Deborah J Lockton, (Palgrave Macmillan) Cases and Materials on Employment Law (OUP) Statutes on Employment Law 2007-08 (OUP) If you do not receive this set of materials, please contact:

Distance Learning Department Holborn College Woolwich Road Charlton London SE7 8LN Tel: +44 (0) 208 317 6000 Fax: +44 (0) 208 317 6003 E-mail: [email protected]

Topics Covered by Module

This module covers the following topics within English

law. A Contract of Service - Employee

Contract of Employment - Express Terms

Contract of Employment - Implied Terms

Contract of Employment - Variation of Terms

Termination of Contract of Employment and Common Law

Claims Arising Out of the Termination of the Contract of

Employment

Employment Tribunal Procedures

Unfair Dismissal Claims

Redundancy

Skills to be Developed and Examined

To be successful in the end of module examination you need to show that you understand and can apply the area(s) of law you have been studying. You must be able to demonstrate this to the examiners by writing answers which communicate the points you wish to make accurately and in good English. This is a key part of demonstrating that you have understood the points of law, the cases and the Acts of Parliament that you have studied. Before you start to write your answer, identify the issues that are relevant to the question. These must be clearly stated in your short introductory paragraph(s). When referring to case law and statute law, you then need to explain the relevant legal principles in the context of the issues you identified in your introductory paragraph(s). Finally, you need to write a concluding paragraph which brings your points together. Do not write everything you know about an area, or write answers that take the form of a series of notes. Your answer should be structured in the way described above and be written in good English. For further guidance on how you will be graded please consult your Award Guide which contains an explanation of the criteria used to grade your work. It is important that you practice answering questions and in particular take the opportunity to submit a sample question for marking and feedback. This question is contained in the Practice Question section of the Module Planner.

Examinations

This module is assessed by one, two hour, unseen written examination. Examinations take place in September, January, and May of each year. The examination is in two parts: Part A is a compulsory question and counts for 50 per cent of the total grade, Part B has four questions of which you will be required to answer two only. Each of the questions in Part B is worth 25 per cent of the total grade. The compulsory question in Part A is based on those topics which make up the Learning Project. You will find details of the Learning Project and the topic area covered by it at the end of the Study Units in this Module Planner. You should read this section carefully to identify those areas of the module covered by the Learning Project. You will, therefore, know in advance of the examination that there will be a substantial question on the topics covered by the Learning Project. When you write the examination you should make sure that you devote 50 per cent of the time to the question in Part A. Your answer to this question should normally be about twice as long as your answer to the two questions in Part B. The purpose of the Learning Project is to allow you to study a significant part of the syllabus in depth in the sure knowledge that you will be examined on it. In this way, hard-working students who have studied their materials thoroughly will be able to write an in-depth answer and have full credit for the work they have done reflected in the grade awarded. There is no assessed coursework for this module. The total grade for the module is based upon the unseen written examination. Although you should make sure that you cover the whole syllabus, it is particularly important that you study those syllabus topics which are covered by the Learning Project thoroughly so that you can write a complete answer to the compulsory question in Part A and take advantage of the fact that this question is worth 50 per cent of the grade. The examination is a two-hour examination with an additional 15 minutes reading time. It is an unseen examination. As stated above, you will know what topics will be covered by the compulsory question in Part A of the examination, provided you have studied the details of the Learning Project at page 44 of this Planner.

A Brief Guide to Study Skills

As a distance learning student you will undoubtedly have other demands on your time. It is, therefore, important that you use your time effectively. The following tips are intended to help you do so.

Time Management

• Be realistic.

• Work out what time you have available for study; take out time for sleeping, eating, recreation, etc.

• Try to plan ahead – do not leave everything to the last minute.

• Prioritise – do not do the easiest task first, but the one that really needs to be done first.

• Set objectives which are reasonable, and make sure that they are somewhere you see them.

• Break large tasks into manageable sub-tasks and set target dates against each sub-task.

• Keep a wall planner chart.

• Try doing the most difficult things when you feel at your best.

• Remember the unexpected always happens, so be flexible – don’t get angry when plans have to change.

Effective Reading Reading

• Read with purpose (what questions have to be answered?).

• Read selectively – scan and skim – only read in detail what you need to.

• Mentally recite what you have just read. • Make notes at appropriate points – bullet points, do not

rewrite the whole book.

Review

• Did I answer the questions I wanted to? • Do I understand and remember what I read?

Studying Where?

• Choose somewhere that is conducive to study. You need: a large table or desk; a suitable chair; a bookcase; adequate, suitable lighting; adequate ventilation; reasonable temperature – too cold,

• you can’t concentrate – too warm, you will go to sleep.

• Banish distractions – magazines, radio, telephone, TV. • Decide where you study best, and try to keep to it.

When?

• When you are alert.

• Not when you are too tired. • When it is the best time of day for you – some people

work better at night, others early in the morning. How?

• Try studying for 50 minutes, break for 10 minutes, etc.

• Have all you need available – pens, pencils, dictionary, PC, etc.

• Avoid too much physical relaxation or you will go to sleep!

• Actively study – make notes, etc. It is difficult to just read for too

• long; it makes you sleepy and you lose concentration.

• Remember to have breaks and do have time for relaxation.

• Set yourself targets, and give yourself rewards!

Practice Questions

At the end of each unit you will find Sample Questions, and at the end of the Planner is a Practice Question and Suggested Answer. strongly advised to submit at least one answer to either a Sample Question or the Practice Question for marking. Unless you do so you will not gain any insight into your strengths and weaknesses.

Introduction to Study Units

The Study Units deal with the individual topics covered by the module. The module is broken down into Study Units to enable you to look at each area of law in digestible parts. You must work through each Study Unit in order, ensuring that you understand the material covered by each Unit before progressing on to the next one. Each Study Unit is broken down into four major sections.

• Reading List This indicates what reading you must do (Essential Reading) in order to cover all of the material set in the Unit. All material listed in the Essential Reading is provided as part of your study materials. You can, if you wish, further your knowledge and understanding by completing the General Reading in each Unit. These materials are not essential for you to complete the course, but you may find them useful in your study. Such materials are not supplied, and you are responsible for obtaining copies of the titles listed in the General Reading. Details are given in the Reading List of suppliers.

• Case Law and Statutes

This section directs you to those cases and statutes that you will need to read and understand in order to complete the Unit.

• Self-Study Questions These are questions designed to set the parameters of the Study Unit and to test your application of the basic principles.

• Sample Questions These may be essay or problem questions, often taken from past examination papers. You should attempt your own answers to all of these questions.

Reading List These are the titles that you will use throughout the course. They are referred to in the reading section of each Study Unit, to guide you in your learning.

Essential Reading All materials listed here must be read in order for you to understand the module. These books are supplied as part of your study materials.

Employment Law Deborah J Lockton, (Palgrave Macmillan)

Cases and Materials on Employment Law (OUP)

Statutes on Employment Law 2007-08 (OUP)

General Reading These materials are not supplied, and are not essential to pass the module. You may, however, wish to refer to them to deepen your understanding of the topics covered by the course. You are responsible for obtaining your own copies of these titles. If you choose to do so, you should be able to purchase them by contacting Hammicks Legal Bookshops at 192 Fleet Street, London EC4A 2NJ; tel: +44 (0)20-7405- 5711 or you can order online at www.hammickslegal.co.uk. Selwyn’s Law of Employment Selwyn (latest edition) Butterworths Smith and Wood’s Industrial Law Smith and Thomas (latest edition) Butterworths Employment Law Pitt (latest edition) Sweet & Maxwell In addition, in each Study Unit you will find a list of cases which should be consulted. Summaries of these can be found in the Casebook. If you have access to the Internet you may wish to take advantage of the legal materials available via this source. See your Award Guide for details. For those students who have never studied the law, certain terminology used may be difficult to understand at first. As you progress through the course, you will learn a range of new words and phrases that are frequently used in the study of law. If you encounter any difficulties with the terminology used, however, you will find it useful to refer to a legal dictionary, which will explain the meaning of legal words and phrases in plain English. Mozley and Whitley’s Law Dictionary (12th edition 2001) by Butterworths is very helpful, and can be purchased through Hammicks Legal Bookshops.

Study Unit 1 Suggested minimum study hours: 15

Topic

A Contract of Service – Employee

Introduction

An employee works under a contract of service, whereas an independent contractor works under a contract for services. The distinction is important when dealing with employees’ rights. This Unit looks at the tests developed by the courts to determine who is an employee.

Objectives

a To understand the difference between a contract of service (for employees) and a contract for services (for independent contractors). b To analyse the various tests used to determine a worker’s status.

Essential Reading

These titles have been supplied as part of your study materials. Employment Law Textbook – Chapters 2 and 3 Cases and Materials on Employment Law – (See listed cases)

General Reading These titles have not been supplied and are not essential reading, but you may wish to refer to them to further your understanding. Selwyn’s Law of Employment, Selwyn – Relevant Chapter(s) Smith and Wood’s Industrial Law, Smith and Thomas – Relevant Chapter(s) Employment Law, Pitt – Relevant Chapter(s) Bowers on Employment Law, Bowers – Relevant Chapter(s) Employment Law, Desmond and Antill – Relevant Chapter(s)

Case law and statute WORKER’S STATUS – EMPLOYEE OR INDEPENDENT CONTRACTOR? Carmichael and Leese v National Power plc [1998] IRLR 301 (CA) Express and Echo Publications Ltd v Tanton [1999] IRLR 367 Lane v Shire Roofing Co Ltd [1995] IRLR 493 (CA) McMeechan v Secretary of State for Employment [1997] IRLR 353 Market Investigations Ltd v Ministry of Social Security [1969] 2 QB 173 Massey v Crown Life Insurance [1978] ICR 590 (CA) Nethermere (St Neots) Ltd v Taverna and Gardiner [1984] IRLR 240 (CA) O’Kelly and Others v Trusthouse Forte plc [1983] IRLR 369

Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 Stevenson & Others v MacDonald and Evans [1952] 1 TLR 101 Young and Woods Ltd v West [1980] IRLR 201 (CA) Employment Rights Act 1996: s230

Self-Study Questions 1 What is the main reason why it is important to distinguish whether a worker is an employee or self-employed? 2 What are three of the prima facie signs that someone is an employee rather than an independent contractor? 3 What are four of the tests which have evolved to assist in determining if a worker is an employee or self-employed? 4 What approach was adopted by the Court of Appeal in Carmichael v National Power plc (1998)? 5 Is the question of whether a worker is an employee or self-employed a question of law or a question of fact? What difference does it make?

Sample Questions 1 ‘The tests developed by the courts to determine who is and who is not an employee come down to one simple test, that is, is there control over the worker?’ Discuss this statement in light of the tests developed by the courts to determine a worker’s status. (Wolverhampton LLB by Distance Learning, September 2001, Question 2.) 2 Ken works for Stoneway Ltd. He provides his own tools and works under a supervisor. Ken works approximately nine months of the year for Stoneway Ltd. When Stoneway Ltd do not require his services, Ken is free to work for other companies. Advise Ken on whether he works under a contract of services or a contract for services. (Wolverhampton LLB by Distance Learning Question.)


Topic

Contract of Employment – Express Terms

Introduction

A contract of employment contains a number of express terms. These terms are found in the individual contract of employment, but the contract may be subject to collective agreements. This Unit looks at the sources of the contract and the significance of the statement of particulars issued under s1 Employment Rights Act 1996.

Objectives a To explain how a contract of employment is formed. b To indicate the sources of the terms of the contract of employment. c To consider the relationship between collective agreements and individual contracts of employment. d To explain the contractual significance of works rules. e To examine the employer’s obligation to inform workers of the main terms and conditions of their employment. f To consider the relationship between the contract of employment and the s1 statement. g To examine the duties owed by employees after the termination of their employment, particularly regarding confidentiality and noncompetition.

Essential Reading These titles have been supplied as part of your study materials. Employment Law Textbook – Chapter 3, section 3.3 Cases and Materials on Employment Law – (See listed cases)

General Reading These titles have not been supplied and are not essential reading, but you may wish to refer to them to further your understanding. Selwyn’s Law of Employment, Selwyn – Relevant Chapter(s) Smith and Wood’s Industrial Law, Smith and Thomas – Relevant Chapter(s) Bowers on Employment Law, Bowers – Relevant Chapter(s) Employment Law, Pitt – Relevant Chapter(s)

Case law and materials SOURCES OF TERMS – COLLECTIVE AGREEMENTS

Cadoux v Central Regional Council [1986] IRLR 131 Hamilton v Futura Floors Ltd [1990] IRLR 490 Marley v Forward Trust Ltd [1986] IRLR 369 (CA) National Coal Board v Galley [1958] 1 WLR 16 Robertson v British Gas Corporation [1983] ICR 351 Singh v British Steel Corporation [1974] IRLR 131 SIGNIFICANCE OF EMPLOYERS’ RULES BOOKS Secretary of State for Employment v Associated Society of Locomotive Engineers and Firemen (ASLEF) (No 2) [1972] 2 QB 455 London Borough of Wandsworth v D'Silva and another [1998] IRLR 193, CA EXPRESS TERMS– RESTRICTIVE COVENANTS REGARDING CONFIDENTIALITY Faccenda Chicken Ltd v Fowler [1986] IRLR 69 (CA) Lancashire Fires Ltd v SA Lyons & Co Ltd and Others [1997] IRLR 113 (CA) Littlewoods Organisation Ltd v Harris [1997] 1 WLR 1472 (CA) Marshall v NM Financial Management Ltd [1997] IRLR 449 (CA) Office Angels Ltd v Rainer-Thomas and O’Connor [1991] IRLR 214 Robb v Green [1895] 2 QB 315 (CA) EXPRESS TERMS – ENFORCEABILITY OF POST-TERMINATION COVENANTS GENERALLY Morris Angel Ltd v Hollande [1993] IRLR 169 (CA) SIGNIFICANCE OF THE S1 STATEMENT OF IMPORTANT TERMS AND CONDITIONS Gascol Conversions Ltd v Mercer [1974] ICR 420 Systems Floors (UK) Ltd v Daniel [1982] ICR 54 Employment Rights Act 1996: ss1(1) and 230(1) Trade Union and Labour Relations (Consolidation) Act 1992: ss179 and 295 Transfer of Undertakings (Protection of Employees) Regulations 1981: reg 7

Self-Study Questions SOURCES OF TERMS – COLLECTIVE AGREEMENTS 1 What different approaches do the courts take in deciding whether a term from a collective agreement is part of an individual employee’scontract? RESTRICTIVE COVENANTS 2 Why are restraint clauses in all types of contracts generally held to be prima facie void? 3 What are the considerations a court or Tribunal will have in mind in deciding whether to enforce a post-termination covenant?

4 Why is it always important to consider whether an employee has been ‘wrongfully dismissed’ in deciding the enforceability of posttermination covenants? SECTION 1 STATEMENTS 5 What remedy does an employee have for failure of the employer to furnish them with a s1 statement? What limit was imposed on this remedy by the decision of the Court of Appeal in Eagland v BT plc?

Sample Questions 1 Singh has been offered employment by Freedan Ltd. The contract would be for a fixed period of three years with either side being able to give three weeks’ notice of termination before the expiry of the three years. The director at the interview stated that although Singh will be based in London, he can be expected to work anywhere in the UK as and when required by the company. There is no clause to this effect in the written contract. Singh is worried about his rights under this contract. He wants to know (a) if he will have any claim against Freedan Ltd if his contract is not renewed at the end of the three years, and (b) whether he can refuse to work outside London. Advise Singh. (Wolverhampton LLB by Distance Learning, May 2001, Question 5.)

2 Malik works as a driver for Dano Ltd. He is not a member of the trade union but he has heard that the union is about to negotiate a collective agreement with an employers’ association of which Dano Ltd is a member. The collective agreement will give the drivers an increase in pay but longer hours of work. Advise Malik on whether the collective agreement will be binding on him. Would your answer differ if Malik were a member of the trade union? (Wolverhampton LLB by Distance Learning, May 2001,Question 2.)


Topic Contract of Employment – Implied Terms

Introduction It is sometimes necessary for the courts to imply terms into the contract of employment to take account of the personal nature of the employer/employee relationship. This Unit examines the approaches the courts take in implying terms into the contract of employment.

Objectives a To examine the nature and extent of the ‘common law’ and ‘statutory’ terms and whether they represent a closed list. b To outline the extent to which an employer is under an obligation to: i pay wages (including sick pay); ii provide work in the absence of any express terms on the matters; iii sustain a relationship of trust and co-operation with the employee; iv to preserve the health and safety of employees. c To outline the extent to which an employee is under an obligation to: i obey the lawful orders of the employer; ii adapt to changing circumstances in the nature of their work; iii treat themselves as having a duty of fidelity to the employer.

Essential Reading These titles have been supplied as part of your study materials. Employment Law Textbook – Chapter 3, section 3.4 Cases and Materials on Employment Law – (See listed cases)


Case law and statutes

IMPLICATION OF TERMS GENERALLY Ali and Others v Christian Salvesen Food Services Ltd [1995] IRLR 624 Courtaulds Northern Spinning Ltd v Sibson [1988] IRLR 276 (CA) Mears v Safecar Security Ltd [1982] 2 All ER 865 (CA) Scally and Others v Southern Health & Social Services Board [1991] IRLR 522 (HL) Stevenson v Teesside Bridge and Engineering Ltd [1971] 1 All ER 296 IMPLIED TERMS AND EXPRESS TERMS IN CONFLICT Johnstone v Bloomsbury Health Authority [1991] IRLR 118 DUTY TO PROVIDE WORK Collier v Sunday Referee Publishing Co Ltd [1940] 2 KB 647 Langston v Amalgamated Union of Engineering Workers (No 1) [1974] 1 All ER 980 Turner v Sawdon & Co [1901] 2 KB 653 (CA) DUTY TO PROVIDE PAY Miles v Wakefield Metropolitan District Council [1987] IRLR 193 (HL) Way v Latilla [1937] 3 All ER 759 (HL) DUTY TO PRESERVE THE EMPLOYEE’S HEALTH AND SAFETY Dryden v Greater Glasgow Health Board [1992] IRLR 469 (EAT) Sutherland v Hatton [2002] IRLR 263 (CA) Walker v Northumberland County Council [1995] IRLR 35 (QBD) Wilsons and Clyde Coal Co Ltd v English [1938] AC 57 DUTY TO PROVIDE INFORMATION TO THE EMPLOYEE Scally And Others V Southern Health And Social Services Board [1991] IRLR 522, HL. DUTY TO COOPERATE WITH THE EMPLOYEE United Bank Ltd. V Akhtar [1989] IRLR 507 (EAT) DUTY TO TAKE REASONABLE CARE IN PERFORMING DUTIES Lister v Romford Ice and Cold Storeage Co Ltd [1957] AC 555 (HL) DUTY TO ADAPT Cresswell v Board of Inland Revenue [1984] ICR 508 MUTUAL DUTY TO SUSTAIN A RELATIONSHIP OF TRUST AND CONFIDENCE Bliss v South East Thames Regional Health Authority [1987] ICR 700

Lewis v Motorworld Garages Ltd [1986] IRLR 465 Malik v Bank of Credit and Commerce International SA (BCCI) [1997] IRLR 462 (HL) Wood v WM Car Services (Peterborough) Ltd [1982] IRLR 413 (CA) EMPLOYEE’S DUTY OF FIDELITY Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] 1 Ch 169 Sybron Corporation v Rochem [1983] IRLR 253 Employment Rights Act 1996: s197 Health and Safety at Work Act 1974 Patents Act 1977: s39

Self-Study Questions 1 What is meant by saying that a term needs to be implied into a contract because it is one of the ‘legal incidents’ of employment? How does this differ from saying that the term should be implied because it is ‘necessary to give the contract business efficacy’? 2 What situation where an employee is allowed to contract out of his/her statutory employment rights is provided for in s197 ERA 1996? 3 Explain the Court of Appeal’s decision in Johnstone v Bloomsbury AHA. What issue was the focus of the decision? 4 Why did the Court of Appeal decide to uphold the lower court’s decision to issue an injunction to prevent employees of Hivac Ltd from working for Park Royal Scientific Instruments? 5 Who is entitled to the benefit from inventions employees make while at work? What statutory provision is made for this? What if they invent something which is related to their job but which they work on only in their own time? Is the employee entitled to the benefit of their invention in that case? 6 What standard of care must an employer observe in fulfilling his implied duty to protect the health and safety of his employees? What is are the practical tests of whether the employer has maintained the appropriate standard of care as set out in Wilson and Clyde Coal Co v English? 7 Why is Walker v Northumberland County Council regarded as a landmark case in relation to the employer’s duty to protect the health and safety of employees?

Sample Questions 1 ‘A contract of employment is nothing more than a simple contract. The basic contractual rules apply to the employment relationship.’ Critically discuss the above statement. (Wolverhampton LLB by Distance Learning, January 2001, Question 2.) 2 If all the terms of a contract of employment were written down, it would make a very hefty document indeed. Examine the significance of, and illustrate with relevant cases, four of the following implied terms which normally will be found in a contract of employment: a the employee must obey the employer’s rules; b the employer must maintain the trust and confidence of the employee; c the employee owes a duty of fidelity to the employer; d the employer must take reasonable steps to protect the health and safety of the employee; e the employer must inform the employee of the detailed requirements relating to access to conditional benefits arising our of his/her employment. (Wolverhampton LLB by Distance Learning Question.)


Topic Contract of Employment – Variation of Terms This Unit covers material contained in the Learning Project.

Introduction During the employment relationship it may be necessary for the terms of the contract of employment to be varied. This Unit looks at the effect of such a variation on the contract of employment and the circumstances in which an employee may bring a claim against the employer for constructive dismissal.

Objectives

a To examine how a variation of the contract of employment can beaccomplished and what effect it may have. b To identify constructive dismissals.

Essential Reading

These titles have been supplied as part of your study materials. Employment Law Textbook – Chapter 3, section 3.7 Cases and Materials on Employment Law – (See listed cases)

General Reading

These titles have not been supplied and are not essential reading, but you may wish to refer to them to further your understanding. Selwyn’s Law of Employment, Selwyn – Relevant Chapter(s) Smith and Wood’s Industrial Law, Smith and Thomas – Relevant Chapter(s) Employment Law, Pitt – Relevant Chapter(s) Bowers on Employment Law, Bowers – Relevant Chapter(s) Employment Law, Desmond and Antill – Relevant Chapter(s)

Case law and statute VARIATION OF TERMS GENERALLY Jones v Associated Tunnelling Co Ltd [1981] IRLR 477 Marriott v Oxford & District Co-operative Society [1970] 1 QB 186 CONSTRUCTIVE DISMISSAL – REPUDIATION BY THE EMPLOYER

Lewis v Motorworld Garages Ltd [1985] IRLR 465 (CA) Tanner v Kean [1978] IRLR 160 Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 (CA) Woods v WM Car Services (Peterborough) Ltd [1981] ICR 166 EXAMPLES OF BREACHES WHICH MIGHT FOUND A CLAIM FOR CONSTRUCTIVE DISMISSAL Bracebridge Engineering Ltd v Derby [1990] IRLR 3 Palmanor Ltd v Cedron [1978] IRLR 303 Rigby v Ferodo Ltd [1987] IRLR 516 (HL) United Bank Ltd v Akhtar [1989] IRLR 507 (EAT) LEAVING WITHIN A REASONABLE TIME Aparau v Iceland Frozen Foods plc [1996] IRLR 119 Jones v Associated Tunnelling Co Ltd [1981] IRLR 477 CONSTRUCTIVE DISMISSAL AND UNFAIR DISMISSAL Savoia v Chiltern Herb Farms Ltd. [1982] IRLR 166 (CA) Employment Rights Act 1996: ss95(1)(c)

Self-Study Questions 1 What redress is available to an employee whose contract is varied without their consent? 2 Does every variation of a contract of employment without the employer seeking the agreement of the employee to the proposed variation amount to a breach of contract? 3 What is the statutory definition of constructive dismissal? What is the difference between constructive dismissal and unfair dismissal? 4 Why did Lord Denning, when he wrote his decision in Western Excavating v Sharp, feel compelled to re-assert the primacy of the law of contracts in determining whether or not there had been a constructive dismissal? 5 What is the importance of the decision in United Bank Ltd v Akhtar in relation to the exercise of contractual powers by an employer? 6 What is the two-fold importance of the decisions in Woods v WM Car Services and Lewis v Motorworld Garages Ltd?

Sample Questions 1 Guy worked as a marketing executive for ‘Marketus’. A modernisation had resulted in all marketing executives being moved to an open plan

office. In addition they had been told that they needed to become proficient in using word processors and computers to enable them to do this work themselves in an emergency. Guy was unhappy about both of these changes. Last Monday, when Guy was unable to print a document, the Managing Director screamed, ‘If you had a brain, you’d be dangerous.’ Guy stormed out. He now seeks your advice about whether he should have walked out and wants to know if he can take a job with ‘Promos’, a marketing company based in the same town as ‘Marketus’. His contract provides that he must not, for a period of 18 months, be engaged in the business of marketing anywhere in the county of Foxhamptonshire, where both companies are based. The clause is to be valid however the contract terminates. Advise him. (Wolverhampton LLB by Distance Learning Question.)

2 Dick is employed by Black and White and Co under the terms of a contract of employment which does not contain a ‘variation clause’. Dick has been working for Black and White for only six weeks and has proved to be incapable of doing his job as a computer programmer. He had no previous experience of this work as required by the job advertisement but applied to Black and White notwithstanding and explained his lack of relevant experience in his application form. He was told at the interview that his inexperience ‘didn’t matter’ and that ‘he would soon pick up the skills of a computer programmer’. Norman, the departmental head of the computer section at Black and White, asked Dick to transfer to the sales department where he is required to work unsocial hours which are affecting his family life. Accordingly, he has seen Thomas, Black and White’s managing director, and asked to be transferred back to his original job in the computer department. Thomas has told him that Norman had no right to transfer him out of the computer department in the first place and that the transfer is invalid. Thomas told Dick that he would take legal advice before deciding what action to take in the matter. Advise Thomas as to the legal issues involved. (Wolverhampton LLB by Distance Learning Question.)


Topic

Termination of the Contract of Employment and Common Law Claims Arising Out of the Termination of the Contract of Employment This Unit covers material contained in the Learning Project.

Introduction A contract of employment may be terminated in a number of ways. Termination may be by mutual agreement. This Unit examines the various ways in which a contract may be terminated and the circumstances in which a termination may give rise to a claim for wrongful dismissal.

Objectives

a To differentiate among the different ways in which a contract of employment can be brought to an end. b To examine the statutory definition of dismissal. c To identify the circumstances in which an employer can terminate a contract of employment without notice. d To understand when a claim for wrongful dismissal can be made. e To be aware of the limitations of the common law remedy of wrongful dismissal. f To identify situations in which an injunction might be granted to prevent or delay the termination of a contract of employment.

Essential Reading

These titles have been supplied as part of your study materials. Employment Law Textbook – Chapter 4 Cases and Materials on Employment Law – (See listed cases)

General Reading

These titles have not been supplied and are not essential reading, but you may wish to refer to them to further your understanding. Selwyn’s Law of Employment, Selwyn – Relevant Chapter(s) Smith and Wood’s Industrial Law, Smith and Thomas – Relevant Chapter(s) Employment Law, Pitt – Relevant Chapter(s) Bowers on Employment Law, Bowers – Relevant Chapter(s) Employment Law, Desmond and Antill – Relevant Chapter(s)

Case law and statute

REPUDIATION London Transport Executive v Clarke [1981] ICR 355 (CA) Thomas Marshall (Exports) Limited v Guinle and Others [1979] Ch 227 GROSS MISCONDUCT Pepper v Webb [1969] 2 All ER 216 (CA) Sinclair v Neighbour [1967] 2 QB 279 Wilson v Racher [1974] IRLR 114 (CA) RESISTING TERMINATION Dietman v London Borough of Brent [1988] IRLR 299 (CA) Hill v C A Parsons & Co Ltd [1972] 1 Ch 305 (CA) Irani v Southampton and South-West Hampshire Health Authority [1985] IRLR 203 Rigby v Ferodo Ltd [1987] IRLR 516 (HL) TERMINATION OF FIXED-TERM EMPLOYMENT Dixon v BBC [1979] ICR 281 Wiltshire County Council v NATFHE and Guy [1980] IRLR 198 (CA) NON-DISMISSAL TERMINATIONS Birch and Humber v The University of Liverpool [1985] IRLR 165 (CA) British Leyland v Ashraf [1978] ICR 979 Egg Stores v Leibovici [1977] ICR 260 Igbo v Johnson Matthey Chemicals Limited [1986] IRLR 215 (CA) Shepherd & Co Limited v Jerrom [1986] IRLR 358 (CA) Employment Rights Act 1996: ss95(1) and (2), 97(1), 97(2), 136, 197 and 203

Self-Study Questions 1 Why is it so important to establish how the contract of employment was terminated? 2 What is the limit of application of the provision in s97(2) ERA 1996 which allows the ‘effective date of termination’ to be extended? 3 In what situation will an employee who is dismissed summarily be entitled to pay-in-lieu of notice? How will the amount they are due be determined? 4 In Hill v C A Parsons the court was prepared to grant an injunction to prevent the termination of an employee’s contract. Does this case mean that the old rule that no specific performance of contracts of employment will be ordered has been swept away?

Sample Questions 1 Irene has worked for her local council for 12 years. During the last two years she has suffered a number of illnesses and has had quite a lot of time off work. She has now been advised by her doctors to spend more

time recuperating and she has decided to visit her home country for one month. When Irene told her employer of her intention, she was asked to sign a form stating that if she does not return to work at the end of the month, she will be deemed to have resigned. The form also contained a clause to the effect that if she has any more time off sick during the coming year, the contract will be deemed to be frustrated. Advise Irene on the above situation. (Wolverhampton LLB by Distance Learning, September 2001, Question 5.)

2 Kylie and Jason were employed by Grundy Productions Ltd. After having played bit roles in several Grundy productions during the previous five years, Kylie now had a leading role in the company’s smash-hit soap opera ‘West Enders’. Jason had been the company’s chief electrician for 12 years. Following the loss of several sponsors due to a decline in the programme’s popularity the company, hoping the changes would reawaken interest in the show, introduced several new characters and killed off some of the old ones. Unfortunately Kylie’s character was one of those dropped and she was told that henceforward she would be working as a tea-girl on the set. Her salary would remain the same for four months but after that she would only be paid a tea-girl rate. On hearing about the way Kylie had been treated, Jason was so angry that he secretly wired the chair used by the show’s producer when he came on set so that it gave him a very painful shock when he sat in it. When accused of having electrified the chair, Jason denied any involvement. Nevertheless, he was dismissed on the spot. He was paid the two weeks salary he had coming; and then he was escorted out of the premises and forbidden to enter onto any Grundy property for the next year. When Kylie heard what had happened to Jason she walked up to the producer, slapped him and with the words, ‘I’m not staying where people are treated like this’ stormed out of the Grundy premises. Grundy’s president has sent all of Kylie’s things to her house with a note saying, ‘Since you’re quitting you’d better have these back’; and he has ordered the company’s security guards not to let Kylie back onto the company’s premises. Kylie and Jason, both rather tearfully regretting their rash behaviour of the day before, have come to you for advice about any action they can take against Grundy Productions. (Wolverhampton LLB by Distance Learning Question.)


Topic Employment Tribunal Procedures

Introduction

This Unit examines the role of the employment tribunal and considers when an appeal may be made to the Employment Appeal Tribunal.

Objectives

a To understand the role played by employment tribunals. b To understand the role played by ACAS. c To know the main jurisdictions of employment tribunals. d To be aware of the procedural steps involved in bringing a claim before an employment tribunal. e To be aware of the powers of an employment tribunal to hold rehearing reviews or interlocutory hearings. f To be aware of the way hearings are conducted in employment tribunals. g To understand the role of the Employment Appeal Tribunal.

Essential Reading These titles have been supplied as part of your study materials. Employment Law Textbook – Chapter 13 Cases and Materials on Employment Law – (See listed cases)


Case law and statutes Burns International Security Services (UK) Ltd v Butt [1983] ICR 547 Byrne and Others v Financial Times Ltd [1991] IRLR 417 Clapson v British Airways [2001] IRLR 184 Delaney v Staples (t/a De Montfort Recruitment) [1992] IRLR 191 (HL) Sogbetun v Hackney London Borough Council [1998] ICR 1264 Equal Pay Act 1972: s2 Sex Discrimination Act 1975: s63

Race Relations Act 1976: s54 Transfer of Undertakings (Protection of Employment) Regulations1981: reg 10 Trade Union and Labour Relations (Consolidation) Act 1992 Employment Rights Act 1996 Employment Tribunals Act 1996 Industrial Tribunals Act 1996 Employment Rights (Dispute Resolution) Act 1998 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Employment Act 2002 (Dispute Resolution) Regulations 2004

Self-Study Questions 1 When will a tribunal award costs? Why do you think that tribunals award costs only exceptionally? 2 When were the tribunals given the power to hear cases regarding breach of the terms of employment contracts? In view of the decision of the House of Lords in Delaney v Staples, why was this an important widening of their jurisdiction? 3 What is the basis on which a tribunal will review its decision? 4 On what basis can an appeal be made to the Employment Appeal Tribunal (EAT)? 5 On what basis will the EAT allow an appeal against the factual findings of a tribunal?

Sample Questions 1 ‘Employment tribunals do not provide an adequate means of dealing with employment issues.’ Critically discuss this statement. (Wolverhampton LLB by Distance Learning Question.) 2 Sarah believes that she was unfairly dismissed and wishes to bring a claim against her employer. Advise Sarah on the steps for bringing a claim against the mployer. (Wolverhampton LLB by Distance Learning Question.)


Topic Unfair Dismissal Claims This Unit covers material contained in the Learning Project.

Introduction An employee has a statutory right not to be unfairly dismissed. The legislation contains potentially fair reasons for dismissal as well as automatically unfair reasons. This Unit examines the statutory reasons for dismissal, together with the employment tribunal’s burden of determining whether a dismissal is fair or unfair.

Objectives a To know which employees are excluded from bringing a claim of unfair dismissal. b To know what the time limit for submitting a claim is; and when that time limit will be relaxed. c To examine the unfair reasons for dismissing employees. d To consider the fair reasons for dismissing an employee. e To understand what is meant by, and the significance of, the term ‘the band of reasonable responses’. f To examine when a lack of procedure by an employer will result in a finding of unfair dismissal. g To be able to indicate how the remedy afforded to a successful applicant will be determined. h To be able to indicate in what circumstances a tribunal may choose to limit or reduce the basic or compensatory award made to a successful applicant.

Essential Reading These titles have been supplied as part of your study materials. Employment Law Textbook – Chapters 4 and 13 Cases and Materials on Employment Law – (See listed cases)


Case law and materials EXCLUDED CATEGORIES R v Secretary of State for Employment, ex parte Seymour-Smith and Perez [1999] IRLR 253 Waite v Government Communications Headquarters [1983] ICR 653 (HL) AUTOMATICALLY UNFAIR REASONS FOR DISMISSAL Brown v Stockton-On-Tees Borough Council [1988] IRLR 263 (HL) Webb v EMO Air Cargo (UK) Ltd. [1995] IRLR 645 (HL) CAPABILITY Alidair Ltd v Taylor [1978] IRLR 82 (CA) Davison v Kent Meters [1975] IRLR 145 QUALIFICATIONS Blackman v Post Office [1974] ICR 151 CONDUCT British Home Stores v Burchell [1978] IRLR 379 (EAT) Frames Snooker Centre v Boyce [1992] IRLR 472 (EAT) Monie v Coral Racing Ltd [1980] IRLR 69 (CA) Moore v C & A Modes [1981] IRLR 71 REDUNDANCY British Aerospace plc v Green [1995] ICR 1006 (CA) High Table v Horst [1997] IRLR 513 (CA) Vaux Breweries v Ward [1968] 3 ITR 385 Williams v Compair Maxim [1982] IRLR 83 (EAT) SOME OTHER SUBSTANTIAL REASON Dobie v Burns International Security Services [1984] IRLR 329 Hollister v National Union of Farmers [1979] IRLR 238 (CA) RS Components v Irwin [1974] 1 All ER 41 COMPENSATION Norton Tool Co Ltd v Tewson [1972] IRLR 86 Rao v Civil Aviation Authority [1994] IRLR 240 (CA) REASONABLENESS OF DISMISSAL AND PROCEDURE British Home Stores v Burchell [1978] IRLR 379

Devis (W) & Sons Ltd v Atkins [1976] IRLR 16 Iceland Frozen Foods v Jones [1982] IRLR 439 (EAT) Midland Bank v Madden [2000] IRLR 827 Polkey v A E Dayton Services Ltd [1987] IRLR 503 (HL) Saunders v Scottish National Camps Association Ltd [1980] IRLR 174 West Midlands Cooperative Society Ltd v Tipton [1986] IRLR 112 (HL) TIME LIMITS Dedman v British Building and Engineering Applicances Ltd [1974] ICR 53 Palmer v Southend-on-Sea Borough Council [1984] IRLR 119 ACAS Code and Practice Employment Rights Act 1996: Part V (ss44–49), Part X (ss94–110) and s111 Trade Union and Labour Relations (Consolidation) Act 1992: ss237 and 238 (1 & 2) Transfer of Undertakings (Protection of Employment) Regulations 2006 Employment Act 2002 (Dispute Resolution) Regulations 2004

Self-Study Questions 1 What is the difference, if any, between the British Labour Pump test and the ‘futility test’ as set out by Lord Bridge in Polkey? How does the addition of Sec. 98A(2) ERA 1996 affect the Polkey test? 2 How does the decision in West Midlands Coop v Tipton in regard to taking the decision of internal appeals panels into account in deciding on the fairness of a dismissal relate to the decision in Devis v Atkins? 3 What is the practical test, set out in cases such as Iceland Foods v Jones, that tribunals will subject an employer’s behaviour to in deciding if they acted fairly? 4 How important is it for an employer to accurately label the reason for which an employee has been dismissed? 5 How far do the cases decided on this point indicate that an employer has to go in investigating an employee’s medical condition before it will be fair to dismiss them for incapacity related to their illness? 6 In what circumstances is it inappropriate for a tribunal to say that a dismissal is unfair because the employer has not adhered to the tests set out by the EAT in BHS v Burchell? 7 Can an employer fairly dismiss an employee for something amounting to less than gross misconduct even though this is the first time that the employee has done that thing? What role can Rule Books and posted notices play in deciding this question? 8 What difference is there between the requirements to consult unions and individuals where an employer is dismissing people for redundancy?

Sample Questions 1 Greta worked for Yousour Ltd until last week when she was told to clear out her desk and leave the premises. She was told that she was being dismissed because the company believed that she had stolen money from another employee. The company has now discovered that Greta had been passing confidential information to a rival company. Yousour Ltd wants to know if they can rely on this subsequently discovered reason for dismissing Greta if she brings a claim against them for unfair dismissal. Advise Yousour Ltd. (Wolverhampton LLB by Distance Learning, September 2001, Question 4.) 2 ‘On hearing a claim for unfair dismissal, if an employment tribunal thinks it would not have dismissed the employee in such circumstances, the claim for unfair dismissal will succeed.’ Critically discuss the above statement with reference to the employment tribunal’s role in determining whether a claim for unfair dismissal should succeed. (Wolverhampton LLB by Distance Learning, January 2001, Question 4.)


Topic Redundancy This Unit covers material contained in the Learning Project.

Introduction An employee may be dismissed by reason of redundancy if the employer’s business has changed or ceased. This Unit examines the circumstances in which a redundancy situation will arise.

Objectives a To identify the circumstances when a redundancy has occurred or is planned. b To explain what procedural steps normally will be required to make a redundancy dismissal a fair dismissal. c To be able to calculate the amount of redundancy pay due to a dismissed employee.

Essential Reading These titles have been supplied as part of your study materials. Employment Law Textbook – Chapter 5 Cases and Materials on Employment Law – (See listed cases)


Case law and statutes ALTERNATIVE EMPLOYMENT Cambridge and District Co-operative Society v Ruse [1993] IRLR 156 Fuller v Stephanie Bowman (Sales) Limited [1977] IRLR 87 Spencer v Gloucestershire County Council [1985]IRLR393 (CA) Vokes v Bear [1974] ICR 1

TRIAL PERIOD Benton v Sanderson Kayser [1989] IRLR 19 (CA) Elliott v Richard Stump Ltd [1987] IRLR 215 BUSINESS REDUNDANCY Nelson v British Broadcasting Corporation (No 2) [1977] IRLR 148 (CA) LOCATION REDUNDANCY Bass Leisure Ltd v Thomas [1994] IRLR 104 High Table v Horst [1997] IRLR 513 O’Brien v Associated Fire Alarms Ltd [1968] 1 WLR 1916 JOB REDUNDANCY Chapman v Coonvean and Rostowrack China Clay Co Limited [1973] ICR 310 (CA) Hindle v Percival Boats Ltd [1969] 1 WLR 174 Johnson v Nottinghamshire Combined Police Authority [1974] IRLR 20 (CA) Murphy v Epsom College [1984] IRLR 271 Safeway Stores plc v Burrell [1997] IRLR 200 (EAT) Sanders v Ernest A Neale Ltd [1974] IRLR 236 Vaux and Associated Breweries Limited v Ward [1969] 7 KIR 308 CONSULTATION Mugford v Midland Bank [1997] IRLR 208 Polkey v AE Dayton Services Ltd [1988] AC 344 TRANSFER OF UNDERTAKINGS Berriman v Delabole Slate Ltd [1985] IRLR 305 ECM (Vehicle Delivery Service) v Cox and Others [1999] IRLR 559 (CA) Litster v Forth Dry Dock Engineering Co Ltd [1989] 1 All ER 1134 Süzen v Zehnacker Gebaudereinigung GmbH Krankenhausservice [1997] IRLR 255 (ECJ) Wilson and Others v St Helens Borough Council [1988] IRLR 706 (HL) Employment Rights Act 1996: Part XI Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE)

Self-Study Questions 1 What is the importance of the recent decision of the EAT in Safeway Stores plc v Burrell regarding the meaning of s139(1)(b) ERA 1996? Does it make it easier or harder to identify a ‘redundancy situation’ of the type identified in s139(1)(b)? 2 What constraint is imposed on employers by the TUPE Regs 1981 to prevent them from making mass redundancies immediately before the sale of their business to another employer? In what circumstances can such redundancies be made without falling foul of TUPE 1981? Give an example of those circumstances. 3 In Sanders v Neale it was argued that there was such a thing as ‘constructive redundancy’. The court rejected this argument. Why, so far as the facts of Sanders v Neale were concerned; and why, on the wider question of principle?

Sample Questions 1 Hans has worked for Kansal Ltd for the last two years. The company is intending to sell the business to ABC Ltd. Hans has heard that ABC Ltd will employ some of the workers currently employed by Kansal Ltd but the workers will be offered new contracts. Hans is worried that he may not be offered employment by ABC Ltd, or if he is offered employment it will be on terms less favourable than those he works under for Kansal Ltd. Advise Hans on his legal position if ABC Ltd takes over Kansal’s business. (Wolverhampton LLB by Distance Learning, January 2001, Question 5.) 2 Edie has worked as a cleaner in a factory for the last three years. Yesterday she was told that in two weeks time she will be transferred to another factory, owned by the same company, six miles away. Edie does not want to transfer and thinks that the company has no right to order her to do so. Advise Edie. (Wolverhampton LLB by Distance Learning, September 2001, Question 3.)

Learning Project Suggested minimum study hours: 50

In common with all the modules that form part of the LLB by Distance Learning programme this module involves a Learning Project. Undergraduate students at the University of Wolverhampton are required to demonstrate that they are capable of independent research before they can be recommended for the award of a degree. For distance learning students this is assessed by reference to the Learning Project you undertake in respect of each module. It requires you to pay specific attention to a list of defined reading. Commonly covering a range of cases and statutes you are required to demonstrate your mastery of the area(s) of law concerned by undertaking a compulsory question as part of the end of module examination. This will commonly take the form of an extended legal problem and require you to demonstrate not only that you understand the areas of law concerned but are able to apply them clearly and without error. It could also take the form of an essay question requiring you to demonstrate an ability to comment on linked areas of law. Particular attention will be paid to the accuracy with which you cite the law and the arguments of those responsible for its development. You will also be expected to demonstrate that you understand, and have not been confused by, the ambiguities and contradictions that exist in the undergraduate study of the law. This question, which will change with each examination paper, will account for 50 per cent of the overall grade and require you to devote one hour of the two-hour examination period to it. Please note that for each examination you are allowed 15 minutes' reading time on top of the two hours you have to write your answers. You may also take into the examination the relevant Casebook and Statute Book. Please note that these may not contain any additional notes or markings.

Learning Project for Employment Law 1: Dismissal and Redundancy Essential Reading Employment Law Textbook (Relevant Chapter(s)) Cases and Materials on Employment Law (Relevant Chapter(s)) Painter, Holmes and Migdal (6th edition 2006) Oxford University Press

Guidance notes This Learning Project is covered by Units 4, 5, 7 and 8 in your Module Planner. In carrying out your reading and research you should have special regard to the following key points. • How a contract of employment can be terminated at common law, particularly by notice. • Compensation for common law wrongful dismissal. • The relationship between wrongful dismissal and unfair dismissal. • The statutory definition of dismissal, particularly constructive dismissal. • The fair reasons for dismissal. • Procedural fairness and the requirement for the employer to act reasonably. • Compensation for unfair dismissal. • The statutory definition of redundancy. • The relationship between a statutory redundancy claim and an unfair dismissal claim, particularly the circumstances when an unfair dismissal claim will succeed even though there is a redundancy situation.

Case law and statutes See case law and statutes listed in Study Units 4, 5, 7 and 8.

Sample Questions 1 Zeedee Ltd employs a number of workers in their offices. Recently the company has been dissatisfied with Ron, who has worked for the company for the last two years. The increasing dissatisfaction is because Ron has refused to work overtime when asked to do so, he has encouraged other employees to complain about the working conditions and last week he upset one of the company’s major customers. Two days ago Ron had an argument with the manager, Sue. Sue has now told the chairman of the company that if there is one more incident, she will lose her temper and tell Ron that he is a ‘lazy, incompetent worker who is just out to make trouble’. Advise Zeedee Ltd whether they can dismiss Ron without incurring liability. (Wolverhampton LLB by Distance Learning, September 2001,Question 1.)

2 Sanjay has worked as a personnel officer for Ringlet Ltd for the last five years. Until recently Sanjay has always received good feedback in staff appraisals. Six months ago, Ringlet Ltd employed John as a manager. John and Sanjay have taken a dislike to each other and there have been a number of arguments between them. Sanjay has been told by other employees that John is constantly criticising him when Sanjay is not around. Yesterday, Sanjay received a letter from Ringlet Ltd stating that his contract of employment would be terminated in three weeks’ time. No reason was given for the dismissal. Advise Sanjay on: a whether he has any claim against Ringlet Ltd; and b if he does have a claim, the remedies available. (Wolverhampton LLB by Distance Learning, May 2001)

Practice Question and Suggested Answer The following test is designed for practice only and does NOT count as part of the assessment regime. A Suggested Solution is, however, offered in the following section. Students are advised not to consult this solution until they have completed the test. It is expected that you will return your answer to the College for marking and feedback. Unless you undertake such work you will not gain an insight into your academic strengths and weaknesses before you attempt the examination. Before attempting your answer, please ensure that you understand the assessment criteria explained in the Award Guide, and the guidance contained in the section of the Module Planner headed ‘Skills to be Developed and Examined’.

Question ‘The duties implied by the common law on an employer and employee ensure that the employment relationship runs smoothly. The duties are merely a commonsense approach to the relationship between the employer and employee.’ Discuss the above statement with reference to the duties implied at common law on both the employer and employee. (Wolverhampton LLB by Distance Learning, May 2001, Question 3.)

Suggested Answer to Practice Question NB: Do not consult this solution until you have completed the test.

Outline Answer This question required a discussion of the common law duties implied on both employer and employee alike. In answering this question, the following matters should have been raised. • Relationship between employer and employee – contract is one of personal services. • Implied terms: court’s approach – The Moorcock (1889); Shirlaw v Southern Foundries Ltd (1939). • Employer: eg pay; if employee is willing and able to work –

Secretary of State for Employment v ASLEF (No 2) (1972); provide work; exceptions to the Turner v Sawdon & Co (1901) principle; to maintain trust and confidence – Malik v BCCI SA (1997). • Employee: eg to obey lawful and reasonable orders; to use reasonable skill and to give indemnity – Lister v Romford Ice and Cold Storage Co Ltd (1989).

Answer Note: this answer is based on one written by distance learning student covering the question set as part of an examination. It is true that to encourage a smooth relationship between employer and employee, some duties and obligations need to be implied into the contract of employment. Contracts of employment express certain obligations which mustbe followed by each party, but sometimes, policies which seem rather trivial and in fact ought to ‘go without saying’ arise, having not been expressly incorporated into the contract; this can give rise to a number of conflicts. Implying terms that are of a commonsense nature is an obvious route that could be taken; however, the judges in Mears v Safecar Security Ltd (1982) cautioned that to imply a term is one thing, but terms must not be implied into the contract if they would not have been agreed upon by the parties to that contract. From the point of view of the employers, there is an implied term that they must pay wages, even though it may be that there is no work. Nonetheless this term may be varied: if the reason for there being no work is not the fault of the employer, he may not have to pay (Browning v Crumlin Valley Collieries Ltd (1926)). He may not, however, without an express contractual term, particularly within certain industries (like construction), lay off employees without pay. He must also pay even when employees are absent due to sickness (Mears v Safecar Security Ltd (1982)). Employers cannot suspend without pay unless the contractual rights allow it (Marshall v Midland Electric (1945)) and this also applies to piece workers (Devonald v Rosser & Sons (1906)). There is no obligation to provide work as laid down in Collier v Sunday Referee Publishing Co Ltd (1940), unless the failure to do so will cause a loss of reputation, as with actors for example (Herbert Clayton and Jack Waller Ltd v Oliver (1930)), or loss of practice. There is a duty to provide care (Lister v Romford Ice and Cold Storage Co Ltd (1989)) though the

employee must not expect to be treated as a child and should also take his/her own precautions. Safe working environments, supervision, training, etc must be provided by the employer, as well as properly functioning machinery, protective clothing and warning signs (where appropriate). Employers owe employees the right to privacy, mutual trust and confidence, and should also (must) provide grievance procedures. On the other hand, employees owe employers the duty of fidelity and must not divulge trade secrets, nor work for the competition in areas that will be detrimental to the employer. They must obey reasonable and lawful orders (Pepper v Webb (1969); Wilson v Racher (1974)), exercise reasonable care and competence (Rose v Plenty (1976)), and must not compete or impede the employer’s business (Hivac Ltd v Park Royal Scientific Instruments Ltd (1946)). An employee must not, as an ex-employee under the existence of a restrictive covenant, set up in competition, or pilfer other employees or customers from the employer’s business to his own business. He must also not misuse company equipment. There is, however, no duty to report misdeeds of his own (Bell v Lever Brothers Ltd (1932)). These simple, commonsense implied terms serve to simplify the running of any business with the cooperation of all involved. They have the strict force of express terms and statutory obligations.

Marker’s comment on Student Answer This was a good answer in that it covered the main points and there was an attempt to address the question. However, at times there was a tendency to list obligations without further explanation. Some statements did not go so far as to properly explain the obligations. One serious flaw was the failure to discuss the implied duty of mutual trust and confidence. This duty has played a pivotal role in the development and use of constructive dismissal. The employer’s duty to cooperate with the employee in fulfilling his contractual duties is another of the most important implied obligations in practice. Another omission was the failure to discuss the circumstances in which a Tribunal will imply a term. Also there was no mention of the relative authority of implied as opposed to express terms.

Revision What to revise Consider carefully what you have been told about the format of the examination. How many questions will you be required to answer in what length of time? Work out how long you are likely to have to write an answer to any one question. Look at past exam papers. A sample can be accessed via the School of Legal Studies website www.wlv.ac.uk/sls. They may help you to identify the questions which are most likely to appear on your exam; and on which you can concentrate your revision. This is known as question spotting and, although this is not advisable, it may sometimes be necessary. If you have to do this, you should revise two additional topics just in case: the question on one of the topics on which you have concentrated most may be phrased in such a way that you are not certain how to answer it. It is, however, safer to deal with every topic in the module so that you are prepared for all questions. By looking at past exam papers you may also be able to determine whether certain topics tend to be examined by way of problem scenarios or general discussion questions. Structure your revision to accommodate the different approaches those two different types of question require. Look closely at the topics covered by the module. Those topics which have been given the greatest emphasis are a good bet to appear in the exam. The question in the Learning Project is compulsory so make sure that your revision is thorough on the topic, or topics, it covers. Planning your revision The best method of revision is to revise continuously throughout your study of a module, but whether you revise continuously or prefer the last minute approach, try to relax on the day before an exam. To do well you need to be both physically and mentally fit. Well before the exam period make yourself a revision calendar. Make sure that the revision period you plan is long enough to cover all of the modules you have studied, and gives you regular breaks away from your studies. You need to start your revision at least two weeks before the examination period. It is not wise to plan to revise for more than an hour at a time without a short break. You should build in some days in which you put revision aside altogether and do something which will take your mind off the upcoming exam period.

Don’t just divide the revision period equally between topics. Make a realistic appraisal of which topic(s) you are weakest in and plan to give them the most time. In deciding how much time to give each topic you should also take into account how much the exam counts towards your overall mark. In other words, plan your revision to do best on exams which will give you the most benefit in terms of your overall results. Do not concentrate all your revision of any one topic in a solid block. You will find that your concentration will be better if you rotate your revision from topic to topic. Plan your revision of any one topic in stages. The first stage is to acquire a knowledge of the topic. This involves re-reading your notes and whatever is necessary in your books. The second stage is to break that knowledge down into easily remembered key components. The third stage is to hone your ability to identify issues and relate them to those key components. This is best accomplished by writing answers to past exam questions. How to revise If you have any general problems with your studying, don’t just sit there hoping it will come right in the end; contact the Module Leader or the College. There are a number of stages in the revision process. First you have to ensure that you have an adequate knowledge of the topics. This is a matter of re-reading notes and filling in gaps by reading relevant sections of your Textbook or other materials until you have reached the point where you understand the material being dealt with. While you are reviewing your notes and other study materials, you should be identifying and marking key points which you can return to when you start to make your revision notes. Remember: revision can only be effective if it is based on a previously acquired basic knowledge and understanding of the topics. The second stage of revision is to create a set of revision notes. These will be aimed at (1) setting out key points and (2) relating these to each other in such a way that they form a coherent picture of a particular topic (3) identifying key cases and/or statutory provisions which you need to know details of.

There are numerous ways of structuring revision notes. Which you choose will be a matter of personal preference. The basic aims, however, are to create a set of notes which you can review quickly many times; and one from which you can retain a vivid mental image so that you will be easily able to recall them in the examination. Therefore your revision notes should be made up of key words and phrases. Each entry in the notes should represent a condensation of information about the topic at hand. Strike a balance between brevity and comprehensiveness. Some concepts may be too complicated to remember without a detailed note. Others readily lend themselves to summing up in a phrase of even a word or two. A rule of thumb is to confine all the revision notes on one topic to one page or less of A4 paper. Using different colours for different topics, or writing the notes so that they create a distinctive pattern on the page, is a way of creating a vivid mental image of your notes. During the exam you may be able to recall the particular information you need by calling up a ‘picture’ of the information. A stepped outline or a spider diagram are two of the ways you can create a pattern which will help you to recall information by focussing on the image and the way it was written down. Spider diagrams are especially useful for creating an image of the way ideas or rules link together. Your friends may think you have become very eccentric but it is a good idea to stroll about your room reciting out loud the contents of a page of revision notes. This, after all, is how actors learn their lines before a performance, and you are doing the same thing when you set out to learn your revision notes before an exam. You may be tempted to shortcut the process of building up a set of your own revision notes by buying one of the many revision guides which are available. These can be extremely useful to give you a very condensed overview of a topic, but remember this: what makes for exam success is displaying to the examiner your own knowledge of the topic. The only way to create your own knowledge of the topic is to create your own set of revision notes using all those other sources The third stage of revision is self-testing. Pick a question from a past exam – and this is where having made a considered choice about which topics to revise is essential – and write an answer to it under ‘exam conditions’: ie taking the length of time you would be given to do the question in the exam. Then go back over your revision notes on that topic and see what you have left out, what you did wrong and what you put in that was not really relevant to the question asked.

You may want to return to your original notes from lectures and reading and have another look at that material. After half an hour or more break, pick another question on the same topic and write an answer to it. Go through the same review process again. Repeat the whole process once or twice more. The advantages of doing this will soon become apparent. You will identify weaknesses in your knowledge and/or understanding. You will see how some components of an answer to a question on a particular topic will re-appear over and over again no matter how the question is worded, and you will have written those bits down often enough that you will not have to spend time in the exam trying to work out how to phrase that part of your answer. The benefit of self-testing is enormously enhanced if you do it as part of a group. Three or four of you working together will amongst you have a very comprehensive knowledge of any topic. What you are weak on, you can pick up from one of the others and vice versa. There is also the psychological boost which comes from working as part of a team. You will find that some of the things you thought it was important to write about completely eluded other members of the group. Also, you will not have seen some important point which they did. Discussing all of your answers together will help you to craft a complete answer to all of the aspects of the question. If you are not in contact with fellow distance learning students, ask members of your family or friends to test you. As well as helping you, this will give them a valuable insight into how much your studies mean to you and the hard work involved. Taking the Examination Hints for Answering Questions The very first thing you must do is to read the whole question. If the question is a problem:

DO

Ask yourself: • Why am I being asked to advise this person? • What has gone wrong? • What are the areas of law involved? If the question is an essay:

DO

Ask yourself: • What area of law does the essay cover? • Which part of that area of law is the essay asking me to discuss? • Which points do I have to focus on in answering the question?

DO NOT, IN EITHER TYPE OF QUESTION

• Start writing before you have read the whole question. • Identify one area of law and write all you know about that area without putting it into the context of the question. The next step is to write an outline plan of your answer. In this plan, you should identify the main points in the problem. If you do not want the plan to be taken into account in your answer, then cross it through and your examiner will ignore it. When you are writing your answer, follow your plan. This will help you avoid discussing areas of law which are not relevant to the question. It will also help you ensure that you cover all the points raised in the question and do so in a logical, reasoned way. After you have read the question and written your outline plan you should re-read the question and then attempt the answer.

WRITING THE ANSWER

In writing your answer, start at the beginning and work through to the end. Make sure that you deal with each issue raised and that you apply the law to the relevant points. Reach a conclusion at the end. Do not start with your conclusion as you may find, part of the way through your answer, that you realise your original conclusion was wrong and you will have to start again. Always give authorities for your answers. These authorities will be statutes and/or cases.

DO

• Address the issues from the start of your answer. • Start at the beginning and work through to the end. • Reach a conclusion at the end. • Relate your answer to specific points in the question. • Give authority for every point of law you make. • Write clearly and in good English. • Time your answers.

DO NOT

• Write all you know about the area before you start actually answering the question; you will only have to write it out again in dealing with the specific points in the question. • Reach a conclusion at the beginning. • Move away from the structure of your outline plan. • Give unsupported statements of law. • Spend so long answering one question that you do not have enough time to answer the rest. • Write in note form (unless you have spent too much time on your previous answers and are left with insufficient time to write a full answer). • Copy large amounts of material from the books you are allowed to take into the examination. Make sure that you put all quotations in quotation marks otherwise you may be thought to have been cheating.

Module Questionnaire Employment Law 1 The School of Legal Studies and Holborn College attach great importance to your views. We would, therefore, be grateful, if now that you have finished studying this module, you would answer the following questions and return them to the address give below. Your answers will be considered by the distance learning teaching team and used in updating teaching materials. 1 What two things did you find most useful about the materials you were provided with for this module? ________________________________________________________________

_____________________________________________________ 2 What two things did you find least helpful about the materials you were provided with for this module? ________________________________________________________________

_________________________________________ 3 Please identify any typographical errors you encountered in using this planner (please make reference to appropriate page numbers). ________________________________________________________________

___________________________ Return to: External Programmes Administrator School of Legal Studies University of Wolverhampton Arthur Storer Building Molineux Street Wolverhampton WV1 1SB United Kingdom You may if you wish e-mail your answers to [email protected]

Employment Law 1 ver 2 - University of Wolverhampton Law 1.pdf · Study Unit 2: Contract of...

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