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Claims for unfair dismissal, contract of employment

Hero may bring the following claims: (1) unfair dismissal; (2) wrongful dismissal; and (3) discrimination on grounds of sex, race, disability, age and/ or trade union membership. These claims will be considered in turn below.

(1) Unfair Dismissal

Hero may bring a claim for unfair dismissal. This will be discussed by considering: (a) whether the eligibility criteria are satisfied; and (b) whether the industrial action is official or unofficial.

(a) Hero must show he is an “employee” as defined by s.230(1) ERA 1996[1] to bring an unfair dismissal claim. Hero is a lecturer at Elysium University. The employer, however, says that he has no contract of employment and is self employed. The question of whether or not Hero is an employee or self-employed should be determined by reference to the contract under which he works i.e. is it a contract of employment or a contract for services?[2] The contract may be in writing or oral or both. It is unclear whether Hero has a contract on the facts.[3]

If Hero can establish there is a contract, whether it is a contract of employment or for services should be considered. The main factors which are determinative of this are “mutuality of obligation” and “control by the employer”. [4] Hero appears to be paid as we are told that he was promised a “pay rise in the New Year”. It is also stated that he is “employed at Elysium University.” Further facts would are required to determine conclusively whether or not Hero is an employee.

If Hero is deemed to be an employee, then he would also ordinarily need one year’s continuous employment with his employer.[5] Hero has less than one year’s continuous employment. However, s.238A Trade Union and Labour (Consolidation) Act (TULCRA) 1992 states that it is automatically unfair to dismiss an employee for a trade union related reason and so the continuity period is dispensed with.[6]

In industrial disputes, there is no age limit so Hero will not be barred from pursuing such a complaint at age 60.[7]

(b) Industrial action has taken place due to a dispute over pay. The right of an employee to present a complaint of unfair dismissal depends on whether the industrial action is official or unofficial. The industrial action will be deemed official if either: (i) it is authorised by the trade union; or (ii) none of those taking part are members of a trade union.[8] We are told that some members who have taken part in the industrial action are members of the union, others are not. This, therefore, rules out (ii).

“Several one day wild cat strikes” have taken place, which are strikes by workers which are unofficial. [9] There is also a union directed “work to rule” and “go slow”. Such action would appear to be official as it is authorised by the trade union.[10]

It is unclear on the facts, what sort of industrial action Hero was involved in. If he was taking part in the unofficial industrial action, the Tribunal has no jurisdiction to hear a complaint of unfair dismissal.[11] This does not necessarily mean the dismissal is fair, but Hero cannot bring a claim.

If Hero was taking part in official industrial action, he may be protected from dismissal. s.16 and Schedule 5 Employment Relations Act 1999 provide that that a dismissal will be automatically unfair if the conditions set out in s.238A TULRCA 1992 are satisfied. Firstly, that the employee took “protected” (i.e. official) industrial action provided the dismissal occurred within 12 weeks.[12] After the period of 12 weeks it is automatically unfair if the employee was dismissed when they had ceased to take part in the action or the employer had not taken reasonable steps to resolve the dispute at the end of this period.[13] Whether the steps are reasonable will be considered by looking at, for example, whether the employer offered or agreed to commence or resume negotiations after the start of the protected industrial action.[14] Further facts are required to determine whether Hero satisfies the conditions of s.238A TULRCA 1992.

(2) Wrongful Dismissal

Wrongful dismissal is a common law contractual claim for breach of contract based solely on the fact that the dismissal by the employer was in breach of contract. [15] Hero will have to establish that there is a contract (as discussed above). Whether Hero has been wrongfully dismissed by the University will be considered by discussing: (a) whether there has been a dismissal; and (b) whether the dismissal is wrongful.

(a) Hero must show that there has been a dismissal, either actually or constructively. With actual dismissal, an employee is treated as dismissed if “the contract under which he is employed…is terminated by the employer…by notice or without notice”.[16] Hero has received a letter saying is no longer required for teaching. It would appear that this is an actual dismissal.

However, Hero may have been constructively dismissed prior to this. In order to prove this he needs to show that: (i) the employer committed a repudiatory or fundamental breach of an express or implied term of the contract; (ii) he was entitled to resign in response, with or without notice, and treat the contract as discharged; and (iii) he resigned within a reasonable time of the breach.

(i) Hero could argue that the University committed a repudiatory breach of contract by reducing his pay by 50%. The general rule is that an employer may not make any deductions from wages.[17] There is an exception, however, where deductions are made “on account of the worker’s having taken part” in a strike or other industrial action.[18] “Industrial action” has a wide general meaning and includes matters such as “strikes” “working to rule” and “go slow”.[19] Whether the dismissal of Hero is lawful or not depends on what type of industrial action Hero was involved in.

If Hero participated in the “wild cat strikes” this will almost inevitable constitute a repudiatory breach of contract and so the University may dismiss Hero without further notice. As such, an employee taking strike action has no entitlement to pay during the periods in which the action occurs.[20]

However, action short of a strike such as the “working to rule” and “go slow” rule are less straightforward. If Hero has refused to perform duties set out in his contract (if he has one), he will be in breach of contract. However, if there is no such existing term the position is unclear. The courts have, however, been willing to view any intention to disrupt an employer’s business as a breach of contract.[21] Hero may have no entitlement to any pay if the University decides to refuse to accept the partial performance of the contract.[22] On the other hand they may be permitted to pay reduced pay where the employer allows the employee to continue working.[23] Where deductions are made they should however, be reasonable i.e. a reasonable reflection of the work lost/ damages caused. Whether 50% is reasonable would be a matter for the Tribunal to consider.

(iii) If Hero can show there is a dismissal he is then entitled to resign in response (with or without notice). This must be within a reasonable time of the breach.[24] If he keeps working, then he will be deemed to have waived the breach.

(b) If there has been a dismissal, the Tribunal will consider whether the dismissal is wrongful. The situation varies, however, depending on whether the dismissal is deemed actual or constructive. If it is actual dismissal, the dismissal is wrongful if the requisite notice has not been given. It is not clear how long Hero worked at the University or whether he has a specific contract so the requisite notice period cannot be determined. Nevertheless, no notice at all has been given so it would be considered wrongful.

If the Tribunal consider this is constructive dismissal, the he may claim wrongful dismissal, provided he affirmed the breach as discussed above.

(3) Discrimination

Hero may be able to bring a claim against his employer if he can prove the University has discriminated against him on the grounds of: (a) sex; (b) race; (c) disability; (d) age; and/ or (e) trade union membership. Under each type of discrimination, it is likely Hero would argue the dismissal was an “unlawful act”, subjecting him to detriment. Each will be considered, (briefly) in turn:

(a) Hero may argue sexual harassment due to the Head of Department asking him for a kiss at the Christmas Party. Sexual harassment is a form of direct discrimination in that it is a type of detriment and subjecting a person to a detriment is an unlawful act under s.6(2)(b) Sex Discrimination Act (SDA) 1975. Hero must prove that the harassment was on the grounds of sex. Normally a comparator is needed. Hero would have to prove that he made it clear the behaviour was unwelcome or offensive.[25] Further, if Hero has complained of the harassment to his employer and the employer has not taken appropriate action, this may be deemed direct discrimination by the employer.[26] Whether the Christmas party is deemed to be in the course of employment, as this was a social gathering is a matter for the Tribunal.[27] If it is considered to be sexual harassment, the employer may be held vicariously liable for the Head of Department’s actions.[28]

The question also states that Hero wishes to undergo a gender reassignment operation. Discrimination is prohibited against a person who intends to undergo a gender reassignment.[29] As above, a comparator may be needed.

(b)Hero is Welsh and discrimination may have occurred on grounds of his race. In BBC Scotland v Souster[30] the Court confirmed that Scots and English are separate racial groups. It is therefore highly likely this could be extended to those of Welsh origin.[31] Hero must show that he has received different and less favourable treatment on the grounds of his race under s.1(1)(a) Race Relations Act (RRA). A comparator may be used where one does not exist.[32] If he can prove this, there will be unlawful discrimination.

(c)Hero has arthritis, which causes walking difficulties. He may have been discriminated on grounds of disability. Hero must prove his disability has a long term adverse effect on his ability to carry out day to day activities.[33] It is likely arthritis would be included.[34] His walking is effected so this satisfies the adverse effect criteria. He will need to show that it is more than minor disability. Medical evidence would probably need to be obtained. The Disability Discrimination Act (DDA) 1995 Schedule 1 paragraph 2 states that impairment is long term if it has lasted more than 12 months. Hero would then have to show he has received less favourable treatment for a reason connected with his disability.[35] Unless the University can justify the less favourable treatment, the discrimination would be unlawful under s.5(1) DDA 1995.

(d) Hero could not argue he has been discriminated against because of his age as the law does not currently provide for this. As from 1 October 2006, the Employment Equality (Age) Regulations 2006 enter into force, which will make direct and indirect age discriminationillegal in employment unless objectively justified.[36]

(e) It may be possible that Hero can show he has been dismissed on the grounds he is a member of the trade union. It is also unlawful to refuse to employ a person if he does not agree, or remain or cease to be, a member of a trade union.[37]

If Hero does decide to bring any of these claims, the time limit is 3 months from the date of dismissal.

[Please note the remedies for each possible claim have not been included due to limits on word count.]

Conclusion

In summary:

  1. Hero may bring an unfair dismissal claim provided he can prove that he is an “employee” and that he is engaged in official industrial action. The dismissal would be deemed automatically unfair in accordance with s.238A TULRCA 1992.
  1. Hero may bring a wrongful dismissal claim if it can be established Hero was actually or constructively dismissed. If there is a contract and no notice has been given, he may have been actually dismissed. Whether this is a constructive dismissal is, however, dubious as there is no evidence to suggest that Hero has yet affirmed the breach.

(iii)Hero may bring claim discrimination on the grounds of sex, gender, race disability, age and trade union membership. Further clarification of the facts is required before Hero can be advised on whether such a claim is likely to succeed.

Bibliography

Paper Resources

Bell A.C., Employment Law Nutcases Sweet and Maxwell (1st edition): 2001

Kidner R., Statutes on Employment Law Blackstone Press Ltd: 2000

Osman C. and Brennan T., Employment Law Guide Butterworths (Fourth Edition): 2005

Painter R.W., Holmes A. & Migdal S., Cases & Materials on Employment Law, Blackstone Press Limited (3rd edition): 2000

Philips, G. & Scott, K., Employment Law, Jordans: 2004

Slade, E., Tolley’s Employment Handbook (18th Edition), Lexis Nexis: 2004

Electronic resources

http://www.westlaw.co.uk

http://www.emplaw.co.uk

http://www.employmentguide.org.uk

http://www.lge.gov.uk

http://freedictionary.com

1


Footnotes

[1] ‘…an individual who…works under…a contract of employment.’ s.230(2) ERA 1996 defines a contract of employment as “a contract for service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing”.

[2] Slade, E., Tolleys Employment Handbook (18th Edition), Lexis Nexis: 2004

[3] The employer is also required by s.1 ERA 1996 to provide a written statement of terms, which sets out the minimum details about the terms governing the employment relationship.

[4] Carmichael and Another v National Power plc [2000] IRLR 43

[5] s.108 ERA 1996

[6] s.152 TULCRA 1992

[7] s.154 ERA 1996

[8] Slade, E., Tolleys Employment Handbook (18th Edition), Lexis Nexis: 2004

[9] www.freedictionary.com/wildcat+strike

[10] Although s.226, 227 TULRCA 1992 must be complied with.

[11] s.237 TULRCA 1992

[12] The 12 week period is an extension to the previous 8 week period and is provided for by the Employment Relations Act 2004 s.26. This came into effect on 6th April 2005

[13] Philips, G. & Scott, K., Employment Law, Jordans: 2004

[14] http://www.lge.gov.uk/content/industrial_action

[15] Philips, G. and Scott, K., Employment Law, Jordans: 2004

[16] ERA 1996 s.95(1)(a) and ERA 1996 s.136(1)(a)

[17] s.13(1), 13(4) and s.14 ERA 1996

[18] s.14(5) ERA 19996

[19] http://www.emplaw.co.uk

[20] Miles v Wakefield District Council [1987] AC 539 ICR 368

[21] British Telecommunications plc v Ticehurst [1992] ICR 383

[22] Sim v Rotherham Metropolitan Borough Council [1987] Ch 216 and Wiluszynski v Tower Hamlets London Borough Council [1989] ICR 493

[23] Miles v Wakefield District Council [1987] AC 539 ICR 368

[24] Philips, G. & Scott, K., Employment Law, Jordans: 2004

[25] Reed and Another v Stedman [1999] IRLR 299

[26] Philips, G. & Scott, K., Employment Law, Jordans: 2004

[27] Chief Constable of Bedfordshire Police v Liversidge [2002] EWCA Civ 894

[28] s.41 SDA 1975

[29] Sex Discrimination (Gender Reassignment) Regulations 1999 and s.2A SDA 1975

[30] [2001] IRLR 150

[31] The case of Williams v. Cowell and anor [2000] ICR 85 deals with racial discrimination in relation to a Welsh employee.

[32] Chief Constable of West York v Vento [2001] IRLR 124 EAT

[33] s.1(1) DDA 1995

[34] Philips, G. & Scott, K., Employment Law, Jordans: 2004 p.166

[35] s.5(1) DDA 1995

[36] http://www.emplaw.co.uk

[37] s.137(1)TULRCA 1992


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