Employment Law Problem Question

Employment Law Problem QuestionTitle utilisation LAW In at a lower placetaking this essay, the writer go away identify the emerges tortuous in Julias case scenario, define and explain those issues using germane(predicate) Law whilst gaining them to Julias case. The writer will subsequently advice Julia and then conclude.The level-headed issues identified in Julias case atomic number 18 go of works and their variation, exploitation, lock price reduction, breach of contr pretend and available remedies such(prenominal) as un uninfected release, reconstructive meltals and wrongful lighting.A narrow of employment is an musical arrangement entered into by an employer and an employee downstairs which they a have certain mutual obligations. They whitethorn be oral exam or written and whitethorn be indefinite or for obdurate m cardinaltary value1. There an offer and acceptance supported by consideration. adjure usually coming from the employer and acceptance whitetho rn be by allot i.e. go in for cypher2. It follows that Julia entered into a stick of employment on turning up to work with Silkos in March 2004. The holiday term whitethorn non have been agree by her at this beat exactly where in that respect is ambiguity as to the thin out, the courts look at an advertizement and earn of appointment to spell show up terms of the contract or to shape terms agreed as in Deeley v British check Engineering ltd3 (and Pedersen b Camden London Borough)4.Julia may rely on the advertisement and any willing witnesses to their agreement on the issue of holiday. Practice of the parties argon relevant to the courts, In Dunlop Tyres Ltd v Blowers5, the practise of paying treble time existing over 30 yrs were considered.The fairness requires that a written disceptation of terms be given to the employee within two months of starting work (as pop the enquired by The Contracts of Employment act 1973 and employment protection rights act 1996 (ERA)). Julias employer breached this rule, by being a month late to provide the tilt, and al atomic number 53 after Julia score process.The program line must(prenominal) contain names of employer and employee, examine of commencement of employment, brief description of the work, remuneration details, holidays, sickness coverage, pension rights, plug-in, disciplinary process e.t.cTo vary any contract there must be express or implied hold from both parties only when it must be supported by consideration. Conduct may suffice from employee on the job(p) under altered conditions.Flexibility clauses such as the employee will per trunk such duties as are from time to time assigned to him by the tabular array of directors or managing director6 are to legally aid employers and employees in vary terms without legal problems, without these clauses, Donaldson LJs remarks in Janata Bank ldt v Ahmed7, that the unceasingly changing contract is unk outrightn to law8Establishing variation is important and different from cobblers lasting a contract, if an employer on his own enforces a variation without an employees consent, he breaks the contract of employment, and the employee is free to choose whether to accept the fundamental breach, and resign, or to bestow on working and seek damages as was the case in Burdett-coutts v Hertfordshire9 Rigby v Ferodo ltd10. Julia may decide to end her employment this path as she may present that she had not consented to the holiday term and the import/variation of her engage and working conditions.It was held in these cases- Jones v associated Tunnelling Co. ltd11 Courtaulds Northern go around Ltd v Sibson and TGWU12 Aparau v ICELAND Frozen Foods plc13 that miscarrying to object to disadvantageous affirmation of terms is not acceptance of them especially where the terms are of no immediate realistic importance. It suffices that even though Julia has been silent on the issue of the four calendar week holiday, she has not accepted the term, but her conduct may imply that she consents. for example, she has worked for two years and must have wagen one-year holidays, this may be viewed as consent but she could still argue that she was not able to start another unrighteousness process because she is feels used having done so in the past.If terms are not agreed, the judiciary may confirm details given, amend or replace contract terms by substituted particulars as held in Mears v Safe railcar Security Ltd14 and supported by the EPCA 1978, s 11, this power kittynot be extensive to holiday, holiday pay, sick pay, pensions or disciplinary rules where none existed by agreement between the parties because there is no requirement to include this in the contract, as held in England v British Telecommunications plc15. Julia is still protected by her statutory rights regarding these benefits.If a departion of wage has been made without employees consent, this is regarded as a fundamental breach of contract and decease of the same as held in Hogg v Dover College16. Following this, the Julia may consider termination if her wage has been deducted without her consent.In Horrgan v Lewisham London Borough Council17, Arn sure-enough(a) J,saidIt is bazarly difficult..and it is in truth necessary if one is to do so, to have very solid facts which read that it was necessary to give business efficacy to the contract,. way of variation18.Silkos may rely on this provision but will fail on the manner in which they are seeking to make the variation.In Marriot v Oxford and District Cooperative Society19, Lord Denning MR found that .. By take a firm stand on new terms to which he never agreed, the employer did... terminate the old contract of employment..case law suggests that employers must make it clear that he is terminating one contract and offering another, otherwise there is a insecurity that the employee can contain in the courts of tribunals rights forgone under the old arrangement20. It is problematic that by seriously changing the terms of Julias wages and responsibility, the employer may have brought an end to her employment.In Sheet Metal Components ltd v Plumridge21, Sir behind Donaldson said the courts have rightly been slow to find that there has been a consensual variation where an employee has been faced with the alternative of bagging and where the variation has been unbecoming to his interests, the same is the situation in Norwest Holst Group Administration Ltd v Harrison22.Julia may strongly rely on these provisions.In Burdett-Coutts v Hertfordshire County Council an employer may end a contract by breach when seeking to vary the terms the courts may interprete this as dismissal.The tolerate of Lords in Rigby v Ferodo Ltd23established that the employee must consent to termination, and reduction of wages is not automatic termination. Also in milling machine v Hamworthy Engineering Ltd24 . It is therefore advisable for employers to give proper acc ount to terminate one contract, before offering another, not doing so-as in Julias case- carries risk of an employee seizeing for unfair dismissal.It is implied into a contract of employment that an employer will provide and monitor for employees, so far as is fairly practicable, a working environment that is reasonably suitable for the performance by them of their contractual duties25. So in Waltons and Morse v Dorrington26 it was held that an employer must not act in such a way as no reasonable employer would act27. This case is supported by Clark v Nomura International plc28, and Johnston v Bloomsbury wellness Authority29 and walker v Northumberland county council30. It appears that the employer has breached this implied contract term by copying Julias grievance issue.It is similarly implied into a contract of employment that an employer must take any action having regard to avoid either imposing workload on the employee or acquiescing in the assumption by the employee of wor kload that was reasonably foreseeable may cause physical or mental hurt Marshall specialist vehicles ltd. V Osborne31.This is clearly breached by increasing the apprehension to meet the same targets with less number of people in her team e.t.c. Express and implied terms must be capable of coexistence in the contract without conflict (Johnstone v Bloomsbury Health Authority32, Aspen v Webs Poultry and meat root word (Holdings) ltd33.Julias express term of three week holiday is not in compliance with her statutory right to a four week minimum, as other implied terms can be excluded except if there is any statutory restraint, such as the rights to guarantee pay, comprise pay, billhook and maximum working hours.Section 27 of the ERA 1996 defines wages as any sums payable by the employer to the worker in connection with the employment including any fee, bonus, commission, holiday pay or other emolument ascribable to his employment, whether payable under his contract or otherwise34.. A deduction of wages includes a failure or refusal to pay the amount agreed to be paid in exchange for employees work, Delaney v Staple35 regardless of reason McCree v Tower Hamlets London Borough Council36. Even though Silkos will breach the employment contract between her and Julias if her wages are deducted for valid economic reason. They must seek her consent in written form to obtain deduction.In Discount Tobacco and confectionary Ltd v Williamson37 ,a retail case where it is permissible to reduce only a tenth of their daily wages with consent on missen items in the shop,It was held that the employers could deduct only in relation to the last event where consent was given. potter around v Hunt Contractors ltd38 and Fairfield ltd v Skinner 39 It is illegal to contract out of this provision.The working Time regulation 1998 came into force on 1 October 1998 and was designed to achieve, a better balance between work and home, greater quality over hours of work and im spread out ment in health40.Regulation 13 of provides annual leave of four weeks minimum. It allows a worker to complain if he suffers action short of dismissal for pursuing his entitlement, and unfair dismissal is also available on the same principle. Julia may pursue her holiday rights followers this.According to Sex unlikeness forge 1975,s4(1) RRA 1976, s 2(1)Unlawful victimisation arises where a person is treated less favourably because he brings proceedings, gives attest or information, alleges a contravention or otherwise acts under the equal pay, sex discrimination or race relations acts or intends to do any of these things41.To succeed in a claim of victimisation the applier must show that one of the acts above done by the applicant-such as delivery an earlier complaint of discrimination- has influenced the alleged victimiser in his disapproving treatment of the applicant as was held in Aziz v Trinity Taxis ltd42. In Nagarajan v London regional transport43 , His motives are unim portant according to the House of Lords.Julia may seek redress under this provision on the behind that she was victimised because she instigated grievance proceedings in trying to assert her rights to her statement of particulars. She was made aware of her disadvantage for asserting these rights.In Lindsay v chemical bond and Leicester plc44, a person had made an industry for promotion and had instituted a grievance on grounds un attached with the Race transaction Act 1976. old geezer constable of west Yorkshire police v khan45 and commissioners of Inland Revenue v Morgan46.According to the acas paper, consultation on the draft employment equivalence (age) regulations 2006 (July 2005)47, first off an action is taken, such as a complaint or allegation and secondly the person is treated less favourable because of such an action. Julia qualifies to claim victimisation on the pedestal of this provision.Clearly, there have been significant breaches in Julias employment with Silk os in her statutory rights to receive statement of particulars within two months, holiday rights, potential variation/termination of her contract with regards to reduction of team members and wages, victimisation for asserting her statutory rights e.t.c.For all these breaches Julia is authorize to redress in the civil courts or the employment tribunals, in the form of damages for unfair dismissal and or wrongful dismissal by reason of constructive dismissal, redundancy e.t.c.The Employment rights Act 1996, the Employment Act 2002 and The Employment Equality (Age) Regulations 2006 cover unfair dismissal. Basically employees can be dismissed unfairly.Qualification for this right is by a working completion of a year with the employers but there are exceptions, where dismissal is connected to business mating membership or activities (Trade Union and Labour Relations (Consolidation) Act 1992) pregnancy of childbirth, maternity, adoption, paternity or parental leave, asserting a stat utory right, claiming the national minimum wage and asserting rights under the working time regulations.From these provisions, it is obvious that Julia qualifies for a claim on both the basis of a year qualification and automatically unfair reasons.The act mentions fair reasons for dismissals as capability or qualifications, conduct, redundancy, illegality or contravention of a statutory duty and some other substantial reason. There is no fair reason to dismiss Julia it appears.An employer must act fairly and reasonably in dismissing an employee or may be faced with a successful claim for unfair dismissal regardless of fair reason for dismissal. The employers have not satisfied either of these criteria in Julias case.A constructive dismissal occurs when an employee leaves a job but then claims that their employers left them no choice but to do so, either by their actions or by implication.It is an unfair dismissal claim but the employee must prove that their employers look caused t hem to end the contract. Julia has every reason to institute unfair dismissal claim by reason of constructive dismissal because of the behavior of her employers. According to the trade union and labour relations consolidations act 1992, it is automatically unfair to dismiss an employee if they indicated that they supported or did not support recognition of a union (or unions)48, clearly Julia did not support the union and may argue- on application for unfair dismissal- that she was victimized for this reason.If an employee proves this behavior, the employer becomes guilty of wrongful dismissal and if futile to prove that the forced dismissal was fair, they become liable for unfair dismissal too. Statutes now suggest that the employee must raise a grievance at to the lowest degree before bringing the claim to the tribunal, which would eliminate constructive dismissal and check the employers.49Wrongful dismissal claim is for a breach of contract and can be brought by any employee, and only requires one month employment. maintain is required but depends largely on how long an employee has worked. After one month it is a weeks notice, after two years, it is one weeks notice for each complete year to a maximum of twelve weeks on and after twelve years.The remedies for unfair dismissal are reinstatement, re-engagement and compensatory award.Compensatory claim has two components, the basic award which takes the age of the employee into question and has no minimum assign and the compensatory award which provides what is just and equitable as compensation, having regard to the loss suffered as a result of dismissal. It is now a maximum of 55,000 pounds, but in dismissals rendered unfair under the public kindle Disclosure Act 1998, there is no limit.50For wrongful dismissal, the remedy are for breach of contract and is usually the 51wages and benefits that the employee would have earned if due notice had been given (Radford v De Froberville52, Shove v Downs Surgi cal plc53.The writer advices that Julia may firstly use the grievance procedure agreed on her contract first, but only if she feels comfortable with so doing, if not-and from the case scenario, it seems not- she still has a strong case for unfair dismissal regardless of the fact that she is uncomfortable using the agreed grievance procedure-the tribunal will her reasons for discomfort favorably. The suggested grievance procedure is taken favorably into account in granting awards for damages.The writer will also advice her that compensatory award for damages in the case of an unfair dismissal claim is more generous than for wrongful dismissal and she may apply on the basis of constructive dismissal because if successful-and it appears she will-the employer will be unable to prove that the dismissal was fair, and will incur damages for unfair dismissal. remedy are then awarded.She chooses between the employment tribunal and the civil courts, but the writer suggests she pursues this t hrough the tribunal because of its less rigid procedures and costs. She must watch over all records from the time of employment till the time of making the application, she must also be aware that there are time limits for bringing the claim to the tribunal but a generous time limit is given by the civil courts. The earlier the better for her because records and evidence do change.BibliographyBooksA.McColgan, Discrimination Law text, cases and materials 2nd editionP.CHANDLER, Wauds Employment Law The interoperable Guide for Human Resource 14th edition,J.Bowers, A practical nest to employment Law, seventh edition, oxford university press, youthful york,2005G.Duddington,. John, Employment law, Pearson Education, 2003 GOULD, T. (2007) Unfair dismissal a guide to relevant case law. 25th ed. London LexisNexis Butterworths.GUINAN, G. (2007) Do dismissals by the book. People Management. Vol 13, No 18, 6 September. p22Journal articlesVorste, G. 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Pg page29952 (1977) 1 WLR 126253 (1984) IRLR 17