Ready Mixed Concrete Versus Minister of Pensions

For the purposes of this essay I have made certain assumptions regarding the employment status of the staff involved and their length of service. I have assumed that all the staff are actually employees of the British Power Systems (BPS), would satisfy the economic reality test Ready Mixed Concrete Ltd v Minister of Pensions [1968] 2 QB497 (DC), and have worked for this company for at least one year. In the case of Michelle I have assumed that she has been an employee for two years.

In advising Phillip regarding his dismissal I would start by telling him he has a possible case for wrongful dismissal as well as a case for unfair dismissal. Gregg dismissed Phillip immediately and I consider that he did not therefore give him payment for a notice period. Consequently the employer had breached his contract with Phillip and this could mean that he had been wrongfully dismissed. Gregg is dismissing Phillip due to his conduct. The ACAS Code of Practice 2009 states that the employer must invite the employee to a meeting to discuss the problem the employer has with the individual and explain the reasons he has a problem. After the meeting the employer must tell the employee their decision and offer them a right of appeal against this decision. The Employment Relations Act 1999 gives the employee the right to be accompanied at that meeting.

In British Home Stores v Burchell UKEAT/108/78 it was determined that there must be an appropriate investigation to determine the facts and that the employer must believe the facts that the investigation produces are correct in order to take action. By summarily dismissing Phillip without a full investigation, he only read out the letter Zoe had sent him, Gregg is failing to follow the necessary procedures and it is therefore likely that his dismissal would be found unfair Polkey v A.E. Dayton Services Ltd [1988] ICR 142, HL. If this was the only reason for the dismissal being unfair then Phillip’s compensation for the unfair dismissal could be reduced. Phillip also has a potential claim against him under the tort of trespass due to his harassment of Zoe. As Zoe has suffered from distress due to Phillip’s unwanted attention she could sue Phillip for damages under this tort. Phillip has also potentially committed a criminal act under the Sex Discrimination Act 1975 and the Protection From Harassment Act 1997.

Zoe would also have a potential claim against Gregg if he continues with his plan to force female employees to wear long trousers unless he also places this restriction on his male employees.

BPS could also be held vicariously liable as Gregg knew that Zoe had dispensed with her overalls and had done nothing about it. There could be found to be a close connection between allowing Zoe to work in shorts and a T-shirt and the harassment which would support this view Lister and Others v Hesley Hall Ltd [2002] 1 AC215 (HL).

I consider that Michelle is in a redundancy situation. In order to confirm this it would be necessary to check the terms and conditions of her employment to determine if she is employed to work at the Blackpool site or if she is employed to work at any site owned by the employer. For the purposes of this analysis I have assumed that Michelle is employed to work at the Blackpool site only. Redundancy is a fair reason for dismissal but the means by which it is handled could make the decision on who to make redundant unfair.

Michelle has been told that she is being moved due to the fact that the need for technicians in Blackpool has diminished. Safeway Stores v Burrell [1997] IRLR200 confirmed that if work of a particular kind has ceased or diminished then this is a redundancy.

In order to avoid an unfair dismissal claim against him Greg needs to fulfil several criteria prior to dismissing Michelle. The fact that she has told him to ‘shove his job’ could possibly be taken as a resignation but precedent set in Futty v D&D Brekkes Ltd [1974] IRLR130 shows the interpretation of the words and the manner in which they were used needs to be taken into consideration.

A dismissal for redundancy where the employer has not had proper consultation with the employee is likely to be unfair. Greg should have had a meeting with Michelle and the other technicians to warn them that their job was at risk and one of them could be made redundant. This should have taken place prior to the meeting he had where he told Michelle that she would need to move. Michelle must be given fair warning of the pending redundancy and must be given reasonable time off, with full pay, to look for alternative employment.

Any selection process for redundancy must be demonstrably fair. The criteria used for the selection must be transparent and care must be taken to ensure they cannot be construed as discriminatory. Once decided the criteria must be applied to all employees in a consistent way.

Gregg could claim that he has made an offer of suitable alternative employment to Michelle which she has refused. The question which needs to be asked is whether the employment is actually suitable to Michelle. As there is a significant amount of travelling on a daily basis involved in taking the offer the other factors regarding Michelle would need to be taken into account Allied Ironfounders Ltd v Macken [1971] ITR109 . If Michelle does agree to move to Manchester then she would have a four week period during which she could decide whether that employment was suitable.

In advising Gregg regarding Norman’s dismissal I would inform him that if he is considering summary dismissal due to gross misconduct. Norman has breached his contract with the employer by going on strike and by inciting others to do the same. This could possibly be accepted by an employment tribunal as a fair reason for a summary dismissal as they would be bound not with what they consider to be reasonable but that they consider the employer found it a reasonable course of action . I would however advise him that any deduction from the wages of the employees would be seen as an unlawful deduction and that the employees could take him to an employment tribunal to recover the wages he had deducted.

Karl is considering making a claim against BPS due to his injuries. In order to determine whether BPS would be liable for his injuries it would be necessary to consider whether a tort has been committed. To determine this it is necessary to first consider whether there is a duty owed to the claimant. Any employer has a common law duty to provide safe premises Wilsons and Clyde Coal Co Ltd v English [1938] AC57 (HL) and must take reasonable care to ensure this. This duty is legally enforced under the Health and Safety at Work Act 1974. It must then be considered whether there has been a breach of this duty. In this case it is clear there is a breach of this duty as the oil has not been cleared away. It must then be considered whether the damage caused by the breach is consistent with that which could be expected and whether the accident was the cause of the damage. It is clear in this case that the direct cause of the damage was the slip which led to Karl hitting his head. Whether the employer has taken reasonable care to prevent the accident would be relevant to any claim Latimer v AEC Ltd [1953] AC643 (HL).

When defending against the claim by Karl consideration must be given to contributory negligence by Karl. Doctors have indicated that it is possible that Karl’s injuries would have been slight if he had been wearing the protective headgear he should have been wearing. In order for this to succeed it must be foreseeable to Karl that not wearing his headgear would be likely to increase the severity of his injuries. This would not prevent BPS being found liable for the injuries but may reduce the compensation payable to Karl Law Reform (Contributory Negligence) Act 1945, section 1(1).