Employment Law Problem Question: Contractual Terms, Contracts, Unfair Dismissal. United Kingdom law - Assignment Example

? EMPLOYMENT LAW PROBLEM QUESTION: CONTRACTUAL TERMS, CONTRACTS, UNFAIR DISMISSAL. UNITED KINGDOM LAW. Introduction The employment relationship is often governed by both legal as well as voluntary measures. Additionally, the voluntary measures include agreements and other resolutions which are derived from collective bargaining, resolution, arbitration and grievances along with discipline handling. These measures also comprise voluntarily accepted principles of good employment practices. On the other hand, legal measures comprises of European Union treaties and other directives, British law, case laws, common laws of contract and statutory codes and practices. Furthermore, the voluntary measures deal with the management functions such as the way in which managers utilize the power, organises and control workforces during the circumstances postulating conflict of interest. While on the other hand, the legal measures provide frameworks that are often stated as terms and conditions which determine the behaviour of employers as well as the condition of the employment (Pearson Education Ltd, 2013; Taylor, 2013). Case Overview Norman who has been employed at the Nottingham branch of Computers under the designation of sales representative was assigned to cover the sales area of East Midlands. Accordingly, he had signed a contract under which he was liable to perform his tasks in the East Midlands. Later, his new manager expressed that he needed to transfer Exeter in order to cover the South West area due to some reasons. Nonetheless, Norman would not like to move to another place due to his personal reasons. In these circumstances, the new manager reminds him about the revised terms under which all the employees of the company were bound to work at any place as stated by the company. Notably at the time of revised terms, Norman had expressed his unwillingness to abide by the new terms wherein the then manager had postulated that he will be not affected by the revised terms. Despite this, the new manager refuses to make any changes in his transfer orders. On the other hand, the company has another problem with its employee Duncan. Accordingly, the company policy firmly restricts the drinking of alcohol among its staffs. In order to ensure that its staffs are duly abided by the company’s policies, the company conducts spot checks as well as breath tests. Duncan who has been working in the company for three years is placed in the call centre where he is required to deal with customers’ enquiries. Notably, his performance in the company has not been impressive enough and he was warned by the company to upgrade his performance. Contextually, one of his co-workers named Eddie offered to buy a drink which he spiked with vodka. Unfortunately, Duncan without being known that Eddie has spiked his drink with vodka, drank the alcohol, and was caught by supervisor on that afternoon during the work. Duncan was immediately suspended, he explained the situations as well as Eddie admitted that he has spiked his drink with alcohol but the management did not pay heed and as the consequences of this incident Duncan was dismissed from the work against the charges of misconduct. Advise Norman Whether Computers Plc. Have the Contractual Right to Move Him and What Action He Can Take Against Them for the Manner in Which They Are Seeking To Implement the Transfer In order to advise Norman concerning the issue of his transfer, firstly it is crucial to understand the employment of law of contract in relation to the changes in the terms of contracts. Accordingly, employment contract is an agreement amid the employee and the employers that binds both employee and employer to certain specific terms and conditions articulated. It is worth mentioning that contract once agreed by the parties involved in the agreement is enforceable under the law. Furthermore, a contract may be in the explicit terms which has been agreed verbally or anything that is in writing. On the other hand, it may be in the implied terms such as the customs and practices that are being followed by the company for a long time and terms that have been negotiated by the trade unions whether the employee is the member of the union or not. Additionally, contract is not always same for the entire life time of the employee or employers. Often the contract terms are most likely to get changed with course of time signifying the remedies for unfair dismissal under s98 (2) (c) ERA 1996 (Brown, Nash, Deakin & Oxenbridge, 2000; Legislation.gov.uk, n.d.). However, the changes in the terms and conditions of the contract require a new agreement between the employee and the employer. The changes in the terms of the contract may bring in certain specific issues such as mobility clause where employer intends to change employee’s place of work, variation in working hours and changes in the duties among others signifying a redundancy situation under s139 (1) ERA 1996 (Legislation.gov.uk, n.d.). It is equally important that changes in the contract are reasonable (Crown, 2013; Daniels, 2008). At certain circumstances wherein employees are not willing to abide by the changes in the terms and conditions of the contract, he may either try to solve informally with his employer or take legal action. If the matter does not resolve informally, the employee can have an option to take action at Employment Tribunal. Employment Tribunal deals with hearing of cases and it is concerned with making judgement on certain employment related issues such as redundancy payment, unfair dismissal discrimination and other issues related with wages and claims. It is worth mentioning that Employment Tribunals are not formal court but they necessitate the requirement to abide by the rules and procedures. With respect to the above case of Norman, it can be stated the revised terms of the contract are not eligible to bound Norman because he has already refused to accept the new terms related with the mobility clause. Additionally, it can be argued that the then manager had no issues with the non-acceptance of the revised terms of the contract. Instead he verbally assured that Norman need not have to worry about the changes made in the terms and conditions of the contract. It is important to note that English law duly considers parties to be bounded and legally enforceable without the due need to put the terms expressed in the agreement into written format. Moreover, Norman and the manager during the time of enforcement of revised terms of the contract had mutually agreed upon the non-acceptance of Norman upon the revised terms. Accordingly, it can be stated that manger’s statement to Norman specifying that he shall not be bound by the terms of the revised contract can be ascertained as the vital evidence that freed Norman from binding of the revised terms of the contract applying his rights under S94 (1) ERA 1996 as neither of the circumstances under which an employee can be dismissed by the employer are satisfied in Norman’s case [Western Excavating (ECC) Ltd v Sharp [1978] QB 761 CA] (The Law at Work, n.d.). However, it is necessary that under this provision, claims must be put forward within a period of 3 months (Legislation.gov.uk, n.d.). If the new manager compels or pressurizes Norman related with the issue of transfer, he has the contractual right to refuse to abide by the decisions of the new manager [St John of God (Care Services) Ltd v Brooks [1992] ICR 715] (11KBW, 2010). Additionally, the contract can be varied if both employee and employer agree on the mutual basis to change the terms of the contract. It is also advocated that while making any changes in the employment contract, employees need to be duly consulted. The changes in the employment can be made on mutual basis either verbally or in writing (Acas, 2009). Regarding the case of Norman, the revised terms within the contract cannot be imposed on Norman as the change in the terms of contract was not accepted by him. In other words, there was no mutual acceptance on the revised terms of the employment contract between the then manager and Norman. Thus, it can be argued that Computers Plc have no contractual right to move him to Exeter from his current sales area of East Midland [Parkes Classic Confectionary Ltd v Ashcroft (1971) 8 ITR 43] (Painter, 2012). Notably, it is advisable to Norman to resolve the issue informally with the new manager or he can file a case in Employment Tribunal within three months after the issue of transfer order in order to seek necessary judgment and claim against the company. Even if Norman does not get satisfied with the Tribunal judgement, he can appeal in Employment Appeal Tribunal and Court of Appeal and finally in the Supreme Court on sequential basis (Thompsons McClure Solicitors, 2012). Advice Duncan Whether Any Unfair Dismissals Claim Is Likely To Be Successful Similarly, in order to advise Duncan in matters related with unfair dismissals, it will be wise to acquire reasonable understanding about the laws and regulations affecting unfair dismissal in the UK. Accordingly, unfair dismissal is considered to be statutory right that permits employees with one year service or more with a right to lodge complaint to Employment Tribunal stating that they have not been treated fairly by their employers. It is worth mentioning that employees’ interests are safeguarded against the unfair dismissal under the Employment Right Act 1996 (Thompsons McClure Solicitors, 2012; Pollert, 2005; Corby, n.d.). According to the Employment Right Act 1996, an employee can be dismissed based on the grounds which are represented below: Lack of capability to perform job Redundancy Misconduct at the workplace A statutory requirement Any other considerable reason Source: (The Chartered Institute of Personnel and Development, 2005; Department for Business Innovation & Skills, 2012; Crown, 2013) Additionally, if the employer claims that the employee has been dismissed for any of the reasons stated above, the employers are required to postulate that they have firmly followed a reasonable set of procedures that has been determined in the Advisory, Conciliation and Arbitration Service (ACAS). Under the Employment Right Act 1996, Employment Tribunal can make decision in the favour of applicant employee that may include reinstatement, re-engagement and compensation (Thompsons McClure Solicitors, 2012). Contextually, reinstatement can be related with an order to an employer to retain the applicant employee back to the job. Similarly, re-engagement deals with an order that emphasises on providing another job to the applicant employee by the same employer. Thirdly, the compensation deals with an order of the Tribunal to compensate the applicant employee for the financial losses incurred at the time of his dismissal (Department for Business Innovation & Skills, 2012). In relation to the case of Duncan, it can be ascertained that Duncan has not deliberately drunk the alcohol instead Eddie had spiked alcohol in his drink and he unknowingly drunk it. Moreover, Eddie had also admitted before the management that Duncan did not drink the alcohol intentionally. Despite the Eddie’s statement, Mr Simon dismissed Duncan on the basis of misconduct. Unarguably, it can be stated that Duncan was being suffered by the unfair dismissal [Forshaw and others v Archcraft Ltd [2005] IRLR 600 EAT] (Unison, 2011). Thus, it is advisable that firstly, he should identify whether he is eligible to make claim against the unfair dismissal [Abbey National plc. v Chagger [2009] IRLR 86] (11KBW, 2010). It is also crucial to note that the claim that is intended to be made must be made within the three months of his dismissal. Accordingly, if he fails to apply for the claim within the period of three months from his dismissal, his right to claim will be permanently lapsed. Additionally, Duncan can file a case against the employer at Employment Tribunal seeking claim for his unfair dismissal (Howell, 2007; Korn & Sethi, 2011). Moreover, Duncan will be liable for reinstatement, re-engagement or compensation if the Tribunal makes decision in his favour. If Duncan does not feel satisfied with the decision made by the Employment Tribunal, he can further appeal in Employment Appeal Tribunal and Court of Appeal and finally in the Supreme Court on sequential basis (Gibbons, 2007; Pearson Education Ltd, 2013). Conclusion Currently legal and voluntary measures play a crucial role for protecting the rights of employees in various circumstances. Accordingly, the employment law of contract is considered to be an agreement between employee and employer which is enforceable under law. With respect to the case of Norman, it is perceived that Norman is liable to seek remedies as the revised terms of the contract do not bound him. Similarly, in relation to case of Duncan, it is advisable that he should file a case of unfair dismissal against the company as the blame of misconduct made by the management on him does not justify and provide valid reason for his dismissal. References Acas. (2009). Varying a contract of employment. Retrieved from http://www.acas.org.uk/media/pdf/8/6/Varying-a-contract-of-employment-accessible-version.pdf Brown, W. Nash, D. Deakin, S. & Oxenbridge, S. (2000). The employment contract: From collective Procedures to individual Rights. ESRC Centre for Business Research, pp. 1-31. Corby, S. (n.d.). Unfair dismissal disputes: a comparative study of Great Britain and New Zealand. Human Resource Management Journal10 (1), pp. 79-92. Crown. (2013). Changing an employment contract. Retrieved from https://www.gov.uk/your-employment-contract-how-it-can-be-changed/getting-agreement Crown, 2013. Relevant sections from the Employment Rights Act 1996. Retrieved from http://jac.judiciary.gov.uk/static/documents/00441_qualtest_materials.pdf Daniels, K. (2008). Contract of employment. The Chartered Institute of Personnel and Development, pp. 32-49. Department for Business Innovation & skills. (2012). Employment law review - Annual update 2012. Crown, pp. 1-16. Department for Business Innovation & Skills. (2012). Dealing with dismissal and ‘compensated no fault dismissal’ for micro businesses – international case studies. Retrieved from https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/31537/12-771-dismissal-for-micro-businesses-case-studies.pdf Gibbons, M. (2007). Better dispute resolution. Department of Trade and Industry, pp. 1-60. Howell, C. (2007). Is there a third way for industrial relations. British Journal of Industrial Relations 42 (1), pp. 1-22. Legislation.gov.uk., (No Date). Employment Rights Act 1996: Section 139. Retrieved from http://www.legislation.gov.uk/ukpga/1996/18/section/139 Legislation.gov.uk., (No Date). Employment Rights Act 1996: Section 98. Retrieved from http://www.legislation.gov.uk/ukpga/1996/18/section/98 Legislation.gov.uk., (No Date). Employment Rights Act 1996: Chapter I. Retrieved from http://www.legislation.gov.uk/ukpga/1996/18/part/X/chapter/I LZW Law. (2013). Employment law - contracts of employment. Retrieved from http://www.lzwlaw.co.uk/documents/employment_law_ce.htm 11KBW. (2010). Employment law in a downturn – challenges for the public sector Jane Mccafferty. Retrieved from http://www.11kbw.com/articles/docs/EmploymentLawinaDownturnJaneMcCafferty.pdf Korn, A. & Sethi, M. (2011). Employment tribunal remedies. United Kingdom: Oxford University Press. Pollert, A. (2005). 217 The unorganised worker: the decline in collectivism and new hurdles to individual employment rights. Industrial Law Journal. Painter, R. (2012). Cases and materials on employment law. United Kingdom: Oxford University Press. Pearson Education Ltd. (2013). An introduction to employment law. Retrieved from http://catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearsonhighered/samplechapter/1408270471.pdf The Law at Work, (No Date). Case law. Retrieved from http://www.thelawatwork.com/page12.htm#WesternExcavatingECCLtdvSharp Thompsons McClure Solicitors. (2012). Summary of the law on unfair dismissal and redundancy. Retrieved from http://www.thompsonsmcclure.com/employment-rights/unfair-dismissal-and-redundancy.pdf Taylor, T. (2013). The future of employment relations. Economic and Social Research Council, pp. 1-21. The Chartered Institute of Personnel and Development. (2005).Employee performance and behaviour. Retrieved from http://www.cipd.co.uk/NR/rdonlyres/6265AA83-97A3-4DE0-A8F3-948CDE697AE9/0/1843980630SC.pdf Unison. (2011). Tackling dismissal and re-engagement strategies. Retrieved from http://www.unison.org.uk/file/Tackling%20Dismissal%20and%20Re-engagement%20Strategies%20Factsheet%20FINAL.pdf Bibliography Aluko, E. (2007). Life in the UK: Everyday knowledge for residents. United Kingdom: Lulu.com. Barnett, D. & Scrope, H. (2008). Employment law handbook. United Kingdom: Henry Scrope. BHP Information Solutions. (2013). Dismissing employees: key facts. Retrieved from http://www.lawdonut.co.uk/law/employment-law/dismissals-and-redundancies/dismissing-employees-key-facts Crump, D. & Pugsley, D. (1997). Contracts of employment. United Kingdom: Butterworths. Chandler, P. (2003). Waud's employment law: the practical guide for human resource managers. United Kingdom: Michael O'Mara Books Ltd. Crown. (2013). Dismissing staff. Retrieved from https://www.gov.uk/dismiss-staff/overview Crown. (2013). Employment contracts. Retrieved from https://www.gov.uk/employment-contracts-and-conditions/overview Davies, A. (2011). Workplace law handbook 2011: employment law and human resources. United Kingdom: Workplace Law Group. Department for Business Innovation & Skills. (2010). Starting out: your employment rights and responsibilities. Retrieved from https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/32184/10-1202-starting-out-your-employment-rights.pdf Reilly, P. A. (2001). Flexibility at work: balancing the interests of employer and employee. United Kingdom: Gower Publishing, Ltd. University of Bradford. (2010). Employment legislation – timeline and definitions. Retrieved from http://www.brad.ac.uk/human-resources/media/hr/allfiles/pdfs/Employment-Legislation---Timeline-and-Definitions.pdf Read More