Important Provisions & Treaties

Question 1

Time off work?

Answer 1

Section 57A ERA 1996

Question 2

Notice periods?

Answer 2

Section 86(1) ERA 1996

Question 3

Right not to be unfairly dismissed

Answer 3

Section 94(1) ERA 1996

Question 4

Presenting UD claim to tribunal

Answer 4

Section 111(2)(a)

Question 5

Fair dismissal

Answer 5

Section 98(2) ERA

Question 6

Automatically Unfair Dismissal

Answer 6

Section 99 ERA 1996

Question 7

Excluded from UD claim

Answer 7

Police service (Section 200 ERA);
Share fishermen (Section 199(2) ERA);
Where matter re national security (Section 202(2)(g))

Question 8

Have to be employee not worker for UD

Answer 8

Section 94(1) ERA

Question 9

Continuously employed for 2 yrs for UD claim

Answer 9

Section 108(1) ERA

Question 10

Present claim b4 3 months

Answer 10

Section 111(2) ERA

Question 11

Written Statement of particulars

Answer 11

Section 1

Question 12

Employee definition

Answer 12

Section 230(1) ERA

Question 13

Worker definition

Answer 13

Section 230(3) era

Question 14

Cases re contract existing?

Answer 14

Ready Mixed Concrete - without consideration, no contract at all.

Melhuish v Redbridge Citizens Advice Bureau - M not eligible to claim UD bcos = volunteer, hence no contract of employment existed (no consideration, so no contract).

Avintair v Ryder Airline Services
Coram: Lord President Hope
Ratio: The pursuers asserted a contract between themselves and the defenders for a consultancy, and that reasonable remuneration was due under it. The Lord Ordinary had found that no contract had been completed, the parties being, at all points, in dispute as to the level of remuneration.
Held: It does not always follow that there is no contract where something which affects the parties’ contractual relationship has not yet been agreed. It may be clear from the terms of the bargain that the parties were content that agreement on this matter should be deferred for the time being, because they have agreed upon all that was necessary for there to be a binding contract between them.

Question 15

Time off for emergencies?

Answer 15

Sections 50-63 ERA (Part VI)

Question 16

Importance of knowing your status - what case demonstrated this?

Answer 16

Windle v Sec of State for Justice - W provided interpretation services and was held to be an employee. Judge Peter Clark said worker/employee/neither status has troubled courts for years - the distinctions central to the level of employment protection afforded to the individuals.

Question 17

5 types of atypical workers?

Answer 17

Casual, voluntary, agency, fixed term, part time workers.

Question 18

Casual worker cases?

Answer 18

O’Kelly v Trusthouse Forte plc - “regular casual” work at hotel. Found not to be employees bcos no mutuality of obligation - hotel had no obligation to give them work and they could choose their work.

Drake v Ispos Mori UK ltd - person working under a succession of contracts = employee bcos of the nature of what they were doing. D = employee bcos MoO existed.

Question 19

Volunteer cases

Answer 19

Melhuish - claimed UD, held not eligible to do so bcos no contract of service (no consideration)

Murray v Newham CAB - M volunteered at specific times, was paid expenses, was given training - argued successfully what he did amounted to employee status bcos there was a mutuality element - was expected to come in certain times, received training.

Question 20

Agency workers?

Answer 20

Montgomery v Johnson Underwood Ltd - M had worked for JU for long time and brought claim for UD. Dispute arose over who = M’s employer - the agency or Hello Company. Court of Appeal held M not employee of JU saying no CofE b/w agency and agency worker. Held M = neither employee of JU or Hello - no status at all, so couldn’t bring claim.

Question 21

What protection do fixed term workers have?

Answer 21

Fixed Term Employees (Protection from Less Favourable Treatment) Regulations 2002 - right to be treated less favourably, right to minimum wage.

Question 22

What protection do part time workers have?

Answer 22

Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 - introduced rights and legal redress for part time workers (make up HUGE proportion of labour force) treated less favourably.

Question 23

What is an employment contract and what are its requirements/essential elements?

Answer 23

One in which an individual sells his services for remuneration, the agreement for which is completed within the principles of contract law. Needs offer-acceptance, consideration, mutuality of obligation. Essential elements laid down in contract law = 2 parties both w/legal capacity, consensus in idem, intention to create a legal obligation - must enter willingly, knowingly, freely, appreciate will be legally-bound.

Section 230(2) ERA 1996 - definition. The employee agrees to work, and the employer agrees to pay the employee for the work he/she does.

Question 24

Status case?

Answer 24

Uber v Aslam - uber claimed drivers = doing business on own accounts but when app is on must be “willing and able to accept assignments” and must accept “at least 80% of trip requests” and subject to penalty for cancelling ride once having accepted - all points towards worker relationship & = inconsistent with Uber’s claim. Held: Uber drivers are Workers, hence qualify for workers’ rights.

Question 25

Case with established a judicial starting point for the Q does a CofE exist?

Answer 25

Ready Mixed Concrete. Man entered into contract w/RMC and dispute arose as to his status. Held: for CofE to exist:
- indivudiail must perform his own work in return for remuneration
-individual must subject themselves to control of the boss
-everything about the contract must point to existence of CofE
J, MacKenna judgement highlights:
(1) mutuality of obligation
(2) personal service
(3) control
(4) other factors

Question 26

Mutuality of obligation

Answer 26

Carmichael v National Power plc - Lord Irvine “an irreducible minimum of mutual obligation necessary to create a contract of service”, Mrs C and others engaged on a “casual as required” basis. Held: CofE didn’t exist due to lack of obligation.

Montgomery v Johnson Underwood

Four Seasons v Hamarat
- Mr H deemed to be employee bcos sufficient mutuality of obligation had built up over years.

NB MofE = a necessity for CofE but still only points towards its existence - doesn’t definitively say it exists.

Question 27

Control element?

Answer 27

Cassidy v Ministry of Health - doctor acted negligently, and held to be employee of hospital, hence hospital = vicariously liable. Lord Denning quote - hospital isn’t one holding stethoscope but if its staff are negligent in their actions, hospital is liable like with any other employer.

Question 28

Integration element of CofE case

Answer 28

Stevenson, Jordan & Harrison v Macdonald & Evans
- Lord Denning quote re ship’s master and chauffeur being employed under contract of service (their work is an integral part of the business), and the ship’s pilot, taxi man being employed under contract FOR services (their work is not fully integrated into the business - only accessory to it).

Question 29

Personal service element of CofE?

Answer 29

Express & Echo Publications v Tanton - T = driver and applied to an IT for declaration of his status as an employee. But clause in contract stating the individual must arrange at own expenses another person to perform their work if they themselves is unable/unwilling, is wholly inconsistent with contract of service. Auld, LJ: where an individual is not required to perform his services personally, the relationship b/w the worker and the person for which they perform the work is not that of an employer-employee.

Question 30

What is the Multiple Test and what is it made up of?

Answer 30

• looked at & considered in court in addition to 5 main tests in order to establish if CofE exists or not.
• may include: paid a wage/salary rather than a fee? Use their own tools/equipment? Do they decide their hours of work/when they work? Can they send someone else to do the job for them? Are tax and national insurance contributions being deducted by their employer?

Question 31

Prudent drafting?

Answer 31

• some employers “contract out” of employment rights that derive from existence of CofE thru prudent drafting - preventing the employer-employee relationship existing in the first place.
• Express&Echo Publications v Tanton - Clause 3.3 in his contract allowed him to send someone else, removing personal service element required for a CofE, hence not an employee.
• Redrow Homes v Wright - Clause 6 of contract allowed the bricklayers to subcontract, and bcos personal service element hence circumcised, they were held to be workers not employees. THEN Redrow v Buckborough - clause was found to be a sham designed to give appearance of B not being a worker - courts are aware of employers trying to get around there being a competed CofE thru prudent drafting. Workers have certain protections, but not as many as an employee.

Question 32

Worker protection?

Answer 32

Section 2(3)(3) ERA - protected to limited extent.

Question 33

Written Statement of Particulars

Answer 33

Section 1 ERA - hence aka Section 1 Statement. Can be given in instalments (Section 1(2)) but all must be given no later than 2 months following start of employment. All employees who have worked >1 month are entitled to one.

Does not need to be provided for employees who have worked less than 1 month - month = Section 210(2)(a) ERA - a calendar month.

NOT A CONTRACT - just a statement the employer is duty-bound to issue to their employee.

Question 34

Continuous employment?

Answer 34

Section 1(3)(c) ERA - requires employment w/o a significant break.

Section 218 ERA - where employed by A then by B in succession, the change of employment does not break the continuity of employment where A and B are associated employers.

Thames Side Court Estate v Jones - changed employer and employer claimed he did not make 2 years continuous employment when made claim for UD. Held A and B = associated employers as A’s company had indirect control over B, so = entitled to make claim for UD.

Question 35

Content of Written Statement?

Answer 35

BIS has put together a template.
Sections 1(3) and (4) ERA detail what is to be included.

Question 36

Failure to provide WS?

Answer 36

Section 11(1) ERA 1996 - where no WS given or is incomplete, employee can apply to tribunal to have missing sections determined/fill in what ought to be there.

England v BT - E had no WS and applied to IT. Found: the tribunal could not invent terms, but instead simply put in place what ought to be there eg insert names of parties, date work started, remuneration.

No sanction imposed on employer for not giving one.

Question 37

Written statement v CofE

Answer 37

• WS is declaration issued by employer to employee - not like a contract with consensus in idem, offer-acceptance etc. W/CofE it is presumed (legal presumption = held good until rebutted in law) that the contents are the terms agreed to by the parties, and hence = v difficult for a court to be persuaded to deviate from contract terms.
• WS has no legal status but CofE does
• In absence of CofE, WS may be persuasive as to the relations b/w employer and employee/the particualrs of employment.

Question 38

Case on WS

Answer 38

System Floors (UK) Ltd v Daniel - Brown-Wilkinson, J: WS provides “v strong prima facie evidence of what were the terms of the contract b/w the parties, but does not constitute a written contract… nor are the WS finally conclusive: at most they place a heavy burden on employer to show that the actual terms of the contract are different from those which he has set out in the WS”. WS = employer’s unilateral view of the agreement. May be the case that cynical employer chooses to only issue WS, not CofE, so their unilateral view in the WS is the only evidence of an agreement.

Question 39

What is an express term?

Answer 39

Usually expressly stated in the CofE - written down or orally. Eg. Restrictive covenant.

Question 40

What is an implied term?

Answer 40

Not expressly stated in contract but apply anyway BCOS the employer and employee have entered into a CofE. 2 types: terms implied in fact, and terms implied in law.

Question 41

What is a term implied in fact? What are the 2 tests?

Answer 41

Not implied into every CofE but instead on the basis and circumstances of the particular contract. They relate to business efficacy.

Officious bystander test and the business efficacy test.

Question 42

Officious bystander test for implied term in fact?

Answer 42

SHIRLAW v SOUTHERN FOUNDRIES - MacKinnon, LJ: implied terms = “something so obvious that it goes without saying, so that if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common, “Oh, of course!””

Question 43

Business efficacy test for terms implied in fact?

Answer 43

REIGATE v UNION MANUFACTURING CO - Scrutton, LJ: “A term can only be implied if it is necessary in the business sense to give efficacy to the contract, that is, if such a term that it can confidently be said that if at the time the contract was being negotiated, someone had said to the parties, “What will happen in such case”, they would have both replied, “Of course, so and so will happen; we did not trouble to say that; it is too clear”.

Question 44

Case re implied terms - take reasonable care?

Answer 44

Johnstone v Bloomsbury HA - junior doctor had contract for 40h/week and at discretion of the employer, overtime could be up to 48h/week, totalling at 88h/week. Some worked >100h/week, and J said was affecting his health. Held: implied term in law to exercise reasonable care in the well-being of employees. Stuart-Smith, LJ: if required to work such long hours that he is exhausted, his work is suffering as concentration falls, accident may arise, it is no defence to the employer to say that the workman expressly agreed to work such hours.

Question 45

Implied terms in law?

Answer 45

• Place of work
• Notice
• Mutual trust and confidence
• Lawful and reasonable offers and instructions
• Reasonable care
• Duty of the employer to provide work for employee

Question 46

Implied terms: place of work

Answer 46

Coutalds Northern Spinning Ltd v Sibson - S = driver based at depot. Quit the Union after an argument with an official and employer decided to move him to different depot. He resigned and brought UD claim - not dismissed, but felt he had no choice BUT to resign. At appeal, held no CD bcos employer = entitled to transfer employee within reasonable distance of their home as long as it was for genuine operational reasons. S = heavy goods driver; the nature of his employment entailed he spent many hours on road - depot only = staring and ending point of day. No place of work or mobility clause in contract, so Court stepped in and said his transfer = reasonable. CofE cannot simply be silent on place of work - otherwise no business efficacy.

Question 47

Implied terms: Mobility clause cases

Answer 47

United Bank v Akhtar - employee worked in Leeds & was asked to transfer to Birmingham branch w/no relocation or travel expenses offered. Contract said “the Bank may from time to time require an employee to be transferred temporarily or permanently to any of the bank locations in the UK, in which travel expenses MAY be payable by the bank” but this is a v wide statement. Held: breach of contract by bank - but not for breach of mobility clause - instead for the WAY the bank used the mobility clause - hence breach was of implied term of mutual trust and confidence. Knox, J: he was offered too short notice, and no allowances were offered to make the move even plausibly possible for him.

Rank Xerox Ltd v Churchill - EAT refused to imply any restriction on an employer’s ability to provide an express mobility clause in a CofE. Company may require you to transfer to another location in the contract.

Question 48

Implied terms: Notice statutory amounts?

Answer 48

Section 86 ERA. These are the statutory minimums and may differ from those laid down in the contract. The statutory minimum will always prevail over the contract should the terms of the contract be less favourable re: notice period. However, if contract terms are more favourable, these prevail. Statute has an element of flexibility to it as either party can accept payment over notice. May have been gross misconduct/repudiatory breach -> immediate dismissal w/no notice would be justified.

Question 49

Common law notice case?

Answer 49

Hill v Parsons - H worked for P for 35 years, then P said all employees had to join the Union. H refused and was given 1 month’s notice. Court of Appeal held notice period of 6 months should be implied in his CofE, w/Lord Denning saying that for a professional man of his standing and length of service, at least 6 months and maybe 12 should be awarded.

Question 50

Implied Terms: Mutual trust and confidence cases

Answer 50

Fundamental term in the employer-employee relationship.

Courtaulds Northern Textiles Ltd v Andrews - A resigned after 17 yrs of service bcos had argument with assistant manager who told A he “couldn’t do the bloody job anyway”, with A felt was a breach of the implied term of mutual trust and confidence. A won but CNT appealed, only for A to win again, as Mr S’s comments were seen as conduct that justified his resignation and allowed him to claim for UD bcos of the fundamental breach of this implied term amounting to CD. EAT said it was conduct that was likely to destroy the trust element which is a necessary component of the relationship.

Malik v BCCI - BCCI ran a corrupt business and the employees (who had not been part of the corruption) claimed their reputations had been sullied; hampering their ability to source new employment. Wanted compensation. Held: there was an implied term that the employer would not carry out a corrupt or dishonest business . Malik says master-servant relationship has now become obsolete w/it now working both ways - w/the employer having to look after the financial, physical and psychological well-being of the employee.

Johnson v UNISYS - J claimed had been wrongfully dismissed & that the method of dismissal = breach of implied term of mutual trust and confidence. J had suffered from work-related stress and was given time-off and an element of counselling buy UNISYS. UNISYS then madder allegations against J regarding his conduct. He was invited to attend meeting with UNISYS that had not been organised in line w/proper procedures. ET found had been wrongfully dismissed and succeeded in claim for compensation. Then J sought FURTHER damages from UNISYS saying manner in which had been dismissed led to him suffering a mental breakdown, and the major psychiatric issues he had been left with left him unable to source new employment. BUT HOW FAR DOES COMPENSATION GO? 2nd leg of his claim = dismissed - too much of a ripple effect. Appealed to HofL but was also dismissed - the REMOTENESS OF DAMAGE.

Question 51

Implied terms: lawful and reasonable orders

Answer 51

Employees = obliged to obey all lawful orders issued by employer. If deemed unlawful or unreasonable, employee can refuse w/o facing the possibility of being sacked. However, refusing a lawful order doesn’t always constitute a breach of CofE.

Question 52

Implied terms: cases for reasonable and lawful orders

Answer 52

Pepper v Webb - P, gardener became lazy, refusing things, and when asked about what arrangements he had made for summer re greenhouse, he replied “I couldn’t care less about your bloody greenhouse or sodding garden”. P was sacked and challenged dismissal. Held: P had been wilfully disobedient of a lawful and reasonable order -> repudiatory breach of contract bcos goes straight to the root of it.

Blyth v Scottish Liberal Club - B sought damages for breach of contract on basis genuinely believed what he had been asked to do was not part of his contractual duties. Held: didn’t matter - employed as a general assistant - the generality of his duties must be assumed due to the nature of their work. B lost case (but not all refusals of lawful/reasonable orders = breach).

Glitz v Watford Electrical Co Ltd - job title = copytypist/general clerical duties clerk. Employer bought duplicating machine but Miss G refused to operate it as fumes gave her headaches, she claimed. WE offered her post in accounting department instead which she refused. Was dismissed as a result. Dismissal was held as fair bcos refused a lawful and reasonable order and when employer tried to offer another post, she declined it. Operating the machine fell within the scope of general clerical duties. Small firm with small no of employees - they did the best they could.

Question 53

Limitations to the duty to perform reasonable orders and instructions: Refusing to work beyond the statutory limits?

Answer 53

Regulation 4(1) WTF 1998 - unless agreed in writing, a worker’s working time, including overtime, shall not exceed av of 48 hours for each 7 days.

Question 54

Limitations to the duty to perform reasonable orders and instructions: time off for dependents

Answer 54

Section 57A

Question 55

Limitations to the duty to perform reasonable orders and instructions: antenatal care

Answer 55

Section 55 ERA
57 ZA
57 ZE
57 ZE(7) - qualifying relationship.

Question 56

Implied terms: duty to exercise reasonable care

Answer 56

Must exercise reasonable care for the health, safety, physical and psychological wellbeing of employees. Contractual duty that mirrors the law of delict.

• Johnson v Bloomsbury HA
• Walker v Northumberland

Question 57

Implied terms in law - duty of employer to provide work for employee?

Answer 57

General rule - no duty to do so as long as employer continues to pay wages.
Turner v Sawdon - no duty on employer to provide employee w/work.
Collier v Sunday Referee Publishing Co - SRP sold newspaper but continued to pay C. Eventually payments stopped, and C raised action for breach of contract. Held: SRP had destroyed his job by selling paper and had breached contract, hence = liable to pay money to Mr C. BUT judge said normally no need to pay work - providing i pay my cook’s wages, she cannot complain if i eat out all the time.

Question 58

Implied duty of fidelity

Answer 58

Both must trust each other, must be 2 way thing - implied in every contract.

Malik

Question 59

Implied duty of fidelity: Fair dealing

Answer 59

Sinclair v Neighbour - S worked in betting shop & took 15£ from till leaving IOU note. N found out and summarily dismissed S. Judge at appeal said relationship of trust had broken down as to take money from till = “incompatible and inconsistent” w/implied duty of fidelity. N could no longer trust S so dismissal = allowed.

Question 60

Implied duty of fidelity: duty to disclose misconduct - OWN misconduct?

Answer 60

Implied duty of fidelity does NOT impose duty on employer to disclose own misconduct. Bell v Lever Brothers - B and S = chair and vice chair of company and their positions ceased to exist. Both paid compensation as a result, but after payment, found that they had secretly entered into transactions on own account, which would have entitled LBs to dismiss them summarily & w/o compensation. LB wanted compensation repaid. Lord Atkin said servant owes a duty not to steal, but having stolen, is there a duty to confess to it? No - would not be logical. If dishonest enough to steal, why would they confess, and hence NO DUTY ON EMPLOYEE TO DISCLOSE OWN MISCONDUCT.

Question 61

Implied duty of fidelity: duty to disclose misconduct of ANOTHER EMPLOYEE.

Answer 61

Sybron Corp v Rochem Ltd: Chief manager at R received commission on pension then = found that he had acted dishonestly and set up own rival firm. Held: S entitled to recover a portion of the pension. No duty on mangager to report own conduct, but also no duty to report someone else’s misconduct here - depends where u sit in hierarchy. In managerial position, for eg, and find out about wrongdoings being conducted below, have duty to report as soon as it comes to ur knowledge.

Question 62

Implied duty of fidelity: working for another firm/rival company.

Answer 62

Hivac v Park Royal Scientific Instruments - no fast and general rule, said Lord Green. “Mere manual workers” - if we restrict them from working outside their 5.5day week, we prevent them from earning, adding to weekly income -> an undesirable outcome. Depends on nature of work - a solicitor’s clerk may find himself doing work on both sides of legal battle, for eg, so Court must check employee isn’t knowingly/deliberately inflicting harm on employer’s business eg leaking secrets.

Sanders v Perry - Mr T = client of S, and P = a solicitor who worked for S. P was dealing w/Mr T. P wanted to leave S and for T to transfer work to P. S said P had breached duty of fidelity. Court agreed as all this had taken place whilst P still employed by S.

Question 63

Moonlighting

Answer 63

Having more than 1 job and doing neither of them with the degree of work you should be providing.

Nova Plastics v Froggatt - odd-job man for NP but was dismissed when found out he was working for a rival also. F claimed UD, and IT agreed - was not contributing seriously to any competition, only an odd job man, no trade secrets. Hivac cited - nature of work = crucial. Cases turn on own facts.

Question 64

Wrongful dismissal

Answer 64

Roots in common law. One party commits repudiatory breach and the innocent party either elects to accept the termination and claim damages, or they elect to affirm it and contribute with their side of the contract; calling for performance from other side (specific implement). Remedies are damages, interdict (employer cannot dismiss employee until proper procedure is carried out) or specific performance (continue with duties as parties to the contract - rare).

Question 65

Unfair dismissal

Answer 65

Sections 94-98 ERA 1996 - creature of statute. Present claim within 3 months, have to be eligible, and possible remedies are reinstatement, reengagement, and compensation.

Question 66

Automatic theory of termination

Answer 66

Contract automatically terminates as a result of the breach. Sanders v Ernest A Neale - 2 bookbinders dismissed as didn’t show up to work on day they were told. The factory closed and they claimed redundancy payments, but held: dismissed. They appealed saying employer had repudiated contract closing down factory but their acceptance was not needed for their dismissal. Their breach automatically terminated CofE.

Question 67

Elective theory

Answer 67

Follows general principles of contract law - if there is a breach, innocent party can either accept termination and claim damages, or force performance by affirming the contract (specific implement). White and Carter councils - chose to affirm the contract and continue with their side, hence full 3 years payment was due. Different when inject ppl into equation tho - w/mutual trust and confidence element having broken down - hard to work together again.

Question 68

Acceptance of repudiatory breach case

Answer 68

Gunton v Richmond on Thames LBC - G = college registrar and was given 1 month notice after allegedly committing repudiatory breach. Disciplinary procedure did not take place properly, took more than a month - cannot be dismissed till this has taken place, hence G argued dismissal = void. However at time of court case, G said would claim damages - can’t claim damages AND not accept the dismissal - damages are a remedy for when contract is terminated. Hence, Mr G HAD accepted the termination and received damages.

Boyo v Lambeth Borough Council - B convicted of attempt to defraud Lambeth Council - condition of bail = not to enter premises. LBC said contract terminated thru frustration. At criminal trial, B accepted damages, accepting termination at same time. Termination takes place when innocent party elects to claim damages.

Question 69

UD working abroad

Answer 69

Jurisdiction of 94(1) only UK - does not apply elsewhere. General rule is not that place of employment is decisive, something more is needed - Lawson v Scott. Eg given by Lord Hoffman = foreign correspondent working for British newspaper, posted to Rome, may remain living in Italy for years, but remains a permanent employee and could be posted to another country - he would fall within scope of 94(1). UD is not a worldwide law - a creation of Westminster only - cant expect it elsewhere.

Question 70

Dismissal by letter

Answer 70

Brown v southall & knight - needs to be reasonably communicated. Qualifying period was 26 weeks, employers thought they had avoided this, but B was on holiday, hence he met the time period on return. Employer posting it is not enough - must be able to show IT that employee has been able to read it. Deliberately not opening it is something the employee must be debarred from.

Question 71

Case that set contractual test for CD

Answer 71

Western Excavating v Sharp - S asked for time off to play cards and was refused it, went anyway, then dismissed. Court of appeal said no CD bcos conduct of employers must be a fundamental breach - not the case here as employers had no duty to advance holiday pay or give him loan. Cannot get CD claim from employer’s conduct alone - scope would be too big, get it on whimsical grounds - hence breach is needed also.

Question 72

For successful CD claim need 3 things:

Answer 72

Sufficiently serious breach of contract by employer
Employee must accept the termination
Must not be too long a delay b/w accepting breach and raising action

Question 73

Contractual test cases for CD

Answer 73

Coutaiulds Northern Spinning Ltd v Sipson - driver relocated to another depot - held no CD as no repudiatory breach - employer CAN move employee if reasonable.

Isle of Wight tourist board v Coombes - intolerable bitch on a Monday morning - claim for CD successful.

Hilton international hotels v Protopata - Miss P severely reprimanded in front of others for not asking permission for dental appointment - CD allowed.

Waltons & Morse v Dorrington - she wanted to work in smoke free environment - successful CD claim - but stayed for notice period - which was her electing to affirm the breach.

Johns v Sirl and Son - no of changes to working conditions, last breach occured, then accepted another job. Held had been CD - she didnt resign bcos had new job, real reason she left = succession of breaches that could no longer work with.

Last straw? O v Waltham Forest Borough Council - several allegations of race discrimination - last straw breach not serious enough however - Court of Appeal said no CD bcos last act could not be trivial or whimsical - must be abreach itself. Not case here as had no duty to pay him during trial proceedings.

Question 74

Fair dismissal

Answer 74

Employer must show 2 things: 1) that they were reasonable, and 2) that reason for dismissal fell within Section 98(1)(b) and 98(2) - 4 reasons = capability conduct redundancy illegality. OR SOME OTHER SUBSTANTIAL REASON

Question 75

Some other substantial reason dismissal cases

Answer 75

Perkin v St George’s healthcare trust - style of work was at logger heads/ out of kilter so contributed to own dismissal - SOSR for legitimate business reasons.

Packing and Warehousing Co v Paterson - lighter in pocket, company would lose business if let him go, so v substantive business reason to let him go.

Question 76

Reasonableness of employer in dismissing employee

Answer 76

Section 98(4)

RRR range of reasonable resources

Question 77

Dismissal summary

Answer 77

Employee shows they were dismissed
Employer shows it was for one of 5 reasons
ET decides if employer acted reasonably in dismissing them (not if dismissal unreasonable in first place) taking into account size and administrative resources

Question 78

No difference rule and what case changed things

Answer 78

No dif rule - if procedural error, but shown that proper procedure would make no dif to outcome, then would be allowed.

Polkey v Dayton Services
- P dropped as business decided to swap 4 lorry drivers for salesmen and he was deemed not appropriate for the role. HofL did 180 on no dif and said procedural fairness was integral part of assessing the reasonableness of dismissal, hence held in favour of Mr P (brought UD claim).

Question 79

Procedural fairness?

Answer 79

ACAS Code of Practice on Disciplinary and Grievance Procedures 2015 March - not legally binding but courts look at it. Awards can be affected up to 25%.

Question 80

Remedies for UD

Answer 80

Reinstatement - Section 113 and 114 (and Section 116(1)(b))
Reengagement - Section 113 and 115 (and Section 116(3)(b))
Compensation - Section 112(4) - basic award is to compensate for loss of accrued employment and goes up every year - capped at 30 weeks pay - £508 per week, and compensation award - compensate for loss - capped at £83,682.