10% in this case due to employer’s failure to comply with both statutory standard dismissal and disciplinary procedure in chapter 1 part 1 of sch. 2 Employment Act 2002.
- Adam:
Adam can claim for breach of contract as his contract on redundancy payment was varied without his consent. The employer does not have right to vary his employees contract unless the contract allows such changes, however even such powers are restricted by The Unfair contract terms Act 1977.
Section 1 of the Employment Rights Act 1996 requires employers to provide employees with a statement of terms and conditions of employment, which forms the express contractual terms between both parties and will be legally binding. A contract of employment like other contracts cannot be varied without agreements on both sides. Neither one of the parties can vary the terms of contract without agreement simply by giving notice to vary Security & Facilities Division v Hayes (2001). During the course of employment it is very likely for the terms to change, however changes can only be lawful if they are authorized by the contract i.e. pay rise. Verifications of contract will only have legal effect if it terminates the existing contract and offers a new contract on revised terms Alexander v STC Ltd (1991).
It is clear in this case that Adam did not accept the new terms orally or in writing but due to him continuing to work it can indicate his acceptance as it was stated in Aparau v Iceland frozen food (1996) that employees who remain at work for a considerable period of time after revising the new imposed terms may be deemed to have accepted the changes. It is possible for the employer to argue that Adam’s conduct was his acceptance of the new terms as he did have 12 months to express his disagreement which shows that Adam failed to act promptly Bliss v St Thames regional health authority (1987). However as a general rule courts and tribunal will be reluctant to find that there has been a ‘consensual variation’ where the employee has been faced with the alternative of dismissal or where the variation has been adverse to his interest Sheet metal components Ltd v Plumridge (1979), particularly where such changes which do not have ‘immediate effect e.g. mobility clause as stated in Jones v Associated Tunneling 1982.
According to s. 162 ERA 1996 SpeakSpeak are under statutory obligation to make minimum redundancy payment to Adam when dismissing him on redundancy ground.
However Adam can also sue his employer for damages for breach of contract in the civil court regardless of whether or not the breach is a fundamental one and since his employment has been terminated, he can claim to employment tribunal which can award damages limited to a maximum of 25,000. Also after 1st October 2004, Employment tribunal can increase or reduce the compensation by 10-15 % if employer or employee failed to comply with the statutory procedure.
John:
Johan is clearly dismissed on ‘Redundancy grounds’ under s. 139 (1) (b) as IQ decided that one of their designers has to go due to recession. John can claim for redundancy dismissal payment only if it can be proven that he is qualified for the redundancy payment.
In order for John to qualify, he must first show that he was an employee under 135 ERA 1996, however it is for the tribunal to decide if a person is an employee by considering the facts and concluding that there is a genuine contractual relationship of employer/ employee as in the case Secretary of state v Bottrill (1999). There is a requirement for continuous employment for at least two years s.155 ERA 1996. He must not be under the age of twenty or past the age of retirement for the job. John’s claim will be invalid if the dismissal was due to ‘gross misconduct’ or if he was offered alternative job and he refused without a valid reason. Once all the above requirements are meet, it is important for Johan to bring his claim within six month to the employment tribunal under s. 164 (1) ERA 1996 due to him not being able to extend the period.
Redundancy is a fair reason for dismissal but not in every situation such as being made redundant due to maternity, being a member of trade union, the dismissal will automatically be made unfair Langston v Cranfield University [19987]. Looking at John’s case, it is clear that the reason for dismissal is not unfair, however if the correct procedure is not followed than it will be considered as unfair redundancy.
The tribunal looks at the procedure that was followed by the employer when selecting John. The employer is required to use a fair and objective way of selecting employees to be made redundant, based on evidence. Certain methods needs to be used by the employer during the selecting process such as last in- first out, asking for volunteers, looking at disciplinary records and staff appraisal makings. John can always appeal against the decision of employer. The employer is also required to consult the employee before making them redundant. Requirement includes speaking to the employee directly and giving reason for selection. Alternative to redundancy needs to be considered otherwise redundancy can be considered as unfair. The case William v Compare Maxam Ltd [1982] sets guideline for what is considered as fair procedure after selecting employees for redundancy such as it is essential for the employer to warn employee and union must offer alternative job s.138 ERA 1996. Overall in order for the dismissal to be reasonably fair, the Acas code of practice needs to be followed, which includes all the above steps that must be followed by the employer prior to dismissal.
If John claims against IQ, it is very likely for them to argue that they did offer John an alternative job with more money but he unreasonably refused the offer s.141 ERA 1996. The Employment tribunal will look at the nature of the alternative employment in relation to skills and compatibilities, in deciding whether or not the Johan was offered alternative job. However if John’s refusal is unreasonable then he will lose his right for redundancy
Payment. This does not stop John to take other actions such as claim for unfair dismissal against IQ if he thinks that he treated unfairly.
Since John was offered a job in slough (20miles away from London), which involved some design work but also working as a manager can be considered as not an alternative job since it was not in the same workplace and offered managerial work. The tribunal will look for ‘mobility clauses’ in John’s contract because if his place of work contractually is London and the employer moves him, he will be considered as redundant unless the distance is short and has no major effect on employee.
For John to claim for redundancy payment, he must give a fair reason for the alternative job offered by IQ. If his claim is successful his redundancy payment would be calculated in regards with s. 162 ERA 1996. Also redundancy payment is calculated in accordance with John’s age and length of employment.
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Lillian
Under common law the employer is responsible for his/ her employees general safety at work. In addition to common law, there are various statutes that the employer must comply with such as health and safety at work 1974, the management of health and safety at work regulation 1999, which Lillian can use to make a claim for psychiatric injuries at work.
Stress can be considered as a reaction that some one can have to excessive pressure at work. As in this case it is clear that due to increase in workload, Lillian has suffered from anxiety, panic attack and depression. It is important for Lillian to show that the psychiatric injuries that she has suffered as a result of the increase in workload was clearly foreseeable to her employer Walker v Northumberland County Council 1995.
Lillian must first prove that she suffered ‘psychiatric illness’. She needs to show that her job posed a real risk of causing the illness and her employer knew or ought to know that she was exposed to the risk. The court will then look at what steps the employer has taken to make sure Lillian does suffer from anxiety, panic and depression again. In other words looking at how IQ dealt with any risks they could reasonably have foreseen. And finally Lillian must prove ‘causation’ by showing that the harm that she suffered was due to the workload and employers breach of duty to take reasonable care.
It is essential that the harm was reasonably foreseeable to Lillian’s employer that she would sustain a psychiatric injury because of stress at work. The Court states for employer to foresee depends on what the employer knew or ought to know about the pressure on the employee at the time. It is very clear in this case that the employer was aware that Lillian did suffer in the past and she did inform the employer regarding the increase in workload.
Once the employer has been made aware that the employee is struggling, they must investigate the problem and find a solution to the problem, which clearly the employer failed to do so in Lillian’s case. Offering counseling advice is unlikely to be breach of duty to employee as stated in Hatton v Sutherland. However in court of appeal it was held that provision of such services will not correct a breach of duty of care. Looking at Lillian’s case there is no indication that any sort if service was provided to her.
Overall test is the conduct of the ‘reasonable & prudent employer’ taking reasonable care of his employees in the height of what he knows or ought to know Barber v Somerset County Council (H.O.L). It can be argued that Lillian’s case is similar to Intel corporation v Daw 1976 in which the court of appeal upheld the decision of high court in 2006 that employer is negligent due to failure to reduce workload of stressed employee and awarded over 134,000 in damages. Lillian can claim for damages and has the right to statutory sick pay, however she must working for an employer under a contract of service. She can receive at least 90 pound a week on average. Lillian will also be able to resign from her position and claim constructive dismissal.
2263 WORDS
Bibliography
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David Lewis and Malcolm Sargeant, Essentials of Employment Law 9th edition
- David Cabrelli, Employment law 2009
- Lecture notes + Module handbook
Websites includes:
