Employment law - 'Sam, one of the directors of the company feels uneasy about the legal implications of the practice and comes to you seeking advice…What advice would you offer him?'

Finally, I wanted to understand the tone of modern employment law. I needed to know how more about the position of those involved. I read ‘Leading Cases and Materials on the Social Policy of the EEC’ by Angela Byre. Although she deals mostly with sexual and racial discrimination the book provided me with information regarding EU directives expressly concerned with protecting the employee and it reflects an inherent desire to eradicate discrimination and fundamental breaches of contract, both of which are of paramount importance to the essay.

Essay:

The actions of ‘Type U Like’ reflect the tone of fear that permeates employers in the modern world. Claims for damages due to personal injury at work, are becoming more and more prevalent. ‘Type U Like’ reflects the desire of many companies to protect themselves against this wave of complaints.

However, the proactive approach of ‘Type U Like’ may be very damaging to the reputation of the company and its directors. Sam is right to feel uneasy about their adopted policy as it encroaches upon the boundaries of law. Indeed, the irony is that in attempting to avoid claims for damages ‘Type U Like’ seem to be increasing the likelihood of this happening.

There are various ways in which employees and interviewees have the ability to combat the behaviour of ‘Type U Like’. I plan to explain the dangers of such behaviour as well as conveying ways in which the company might avoid any course of action from those affected by their testing policy. Issues concerning wrongful and unfair dismissal and discrimination are paramount in terms of the information Sam requires.

As mentioned above, wrongful dismissal is an extension of contract law:

‘A dismissal is therefore wrongful if the employer either terminates the contract in a manner which is contrary to its terms or does some other act which shows an intention not to be bound by it.’ 

‘Type U Like’ fall under both categories. If they continue to surreptitiously dismiss those employees who suffer from the Chromosome deletion they may face severe results in terms of claims under breach of contract. The actions of the company reveal intent not to be bound by the initial contract thus they will be deemed to have repudiated it, such as occurred in Bliss v South East Thames Regional Health Authority [1985]. Here, it was decided by the court of appeal that the Authority had repudiated the contract by insisting upon a medical test for one its consultants. ‘Type U Like’ therefore, as in the cited case, has no power to insist upon medical examinations without providing their employees with a reason. They should not ‘…act beyond the powers conferred upon them by the contract itself.’   Indeed, upon acting in such a manner ‘Type U Like’ serves to repudiate the contract further as it insists upon extra terms of employment as reflected in Burdett-Coutts and others v Hertfordshire County Council [1984].

It is not even possible for the company to set their form of medical testing as part of a standard form contract as an attempt to do so would work against Section 2 of the Unfair Contracts Act which deals with companies’ attempts to exclude or restrict liability. Section 1.1 defines negligence as:

‘the breach –

(a) of any obligation, arising from express or implied terms of a contract, to take reasonable care or exercise reasonable skill in the performance of the contract.’

However, the law of wrongful dismissal does not work completely in favour of the employee. The directors at ‘Type U Like’, if involved in cases of wrongful dismissal, would not be obliged to give the specific reason for the dismissal itself. This means that they can wrongfully dismiss employees after receiving positive test results but they don’t have to provide this as their reason for dismissal. The company therefore, would be able to consolidate some part of its reputation despite the claims for damages. The ability to do this was stressed by Lord Denman in Ridgway v The Hungerford Market Co [1835]:

‘ “…it is not necessary that a master, having a good ground for dismissal should either state it to the servant or act upon it. It is enough if it exist, and if there be improper conduct in fact.’’

Employees may realise that this works in favour of the employer and may therefore complain instead, that unfair dismissal has taken place. This differs from wrongful dismissal, as the employer is required to supply a valid reason for dismissal. This reason must fall within one of five categories established by the Employment Rights Act 1996:

 

1. a reason relating to the capability or qualifications of the employee
2. a reason relating to employee conduct
3. redundancy
4. the fact that the employee cannot continue to do his job without contravening law
5. some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.

Sam could argue that the chromosome deletion reduces the ability of those suffering from it to perform the tasks he requires. However, it is only a possibility that such a deletion causes carpal tunnel syndrome and for this reason I would not advise him to argue that he has valid reason for dismissal. Besides;

“ERA 1996, s. 98 (4) provides that a tribunal must be satisfied that the employer acted ‘reasonably or unreasonably in treating it [the reason for dismissal] as a sufficient reason for dismissing the employee’ and that question ‘shall be determined in accordance with equity and the substantial merits of the case.’”

The tone of employment law is one of fairness, one which favours the employee. This was reflected in Polkey v A E Dayton Services ltd [1987] which saw the Lords reassert the fact that employers’ failure to follow fair procedure is very rarely justified. It is for this reason that ‘Type U Like’ is treading dangerous ground in their movements to detect possible future claimants of damages in an underhand way. If an ex-employee were to make a claim for wrongful or unfair dismissal then it appears that Sam and his board of directors would find it extremely difficult to defend their decisions.

Claims for damages under wrongful and unfair dismissal apply only to those who have been employed by the company in question. However, a breach of the Disability Act applies to both interviewees and employers, and indeed if a claim was made in this sphere, it would be much more detrimental to ‘Type U Like’ in terms of final damages awarded. Claims made under the remit of discrimination are more likely to be successful as the qualifications for success are a lot broader and the right not to be discriminated against is one which everyone takes for granted when applying for a job or acting as an employee. The defining reason for this however, is that compensation for discrimination is assessed in the same manner as any in tort case i.e. on the same basis as if the employee had brought an action in damages for tort in the county court, thus common law applies (Hurley v Mustoe (No 2) 1983).

The Disability Act 1995 expressly defines unlawful discrimination as ‘treating less favourably without justification.’ The proactive approach of ‘Type U Like’ is a blatant breach of this fundamental right. Their treatment of interviewees, as well as breaking the above requirement would also be condemned under Part III section C of the Disability Act:

‘It is unlawful to discriminate against the disabled:

…

(c) By refusing to offer/ deliberately not offering employment’

Sam’s company should also recognise that they are in breach of Article 8 of the Human Rights Act 1998, which is referred to in Blackstone’s Guide to the Employment Relations Act 1999 as ‘ the most fruitful source of case law’ in terms of breaches of the sanctity of private and family life.

However, I found a possible paradox in the law, one which could work in favour of ‘Type U Like.’ The European Community, while heralding human rights, is at the same time demanding ‘ more extensive monitoring of workers’ health and safety.’

However, the programme later stresses that employees have to be involved in such monitoring:

‘ Any proposed solutions must allow workers and employers to play a fuller part in practical organisation of such monitoring at various levels of action and responsibility.’

Although ‘Type U Like’ fails to do this, they could argue that they misconstrued the requirements of the community and that was their only reason for performing the blood tests, although this is not especially recommended.

One of the most important statutes of the twentieth century came in the form of the Data Protection Act 1998. ‘Type U Like’, if they opt to perform secret blood tests, will be in severe breach of this law. The Act requires pro activity in providing personal data as well as allowing individuals to access data themselves. An individual is entitled to:

‘be informed by any data controller whether data of which that individual is the data subject are being performed by or on behalf of that data controller.’

And

‘if that is the case to be given by the data controller a description of –

1. personal data of which that individual is the data subject.
2. Purposes for which they are being processed
3. Recipients or classes of recipients to whom they or maybe disclosed. ‘

Thus as well as being entitled to a written statement as to the reasons for their dismissal, former employees of ‘Type U Like’ will also be able to request access to individual test results. The Data Protection Act would also be helpful to those dismissed at interview level for reasons that they find suspicious. If they request access to the information gained from the medical test, ‘Type U Like’ will not be able to refuse.

Thus, it is my contention that if ‘Type U Like’ decide to go ahead with their plans to request blood tests from employees and interviewees, without revealing their express purpose, they may face serious results. Claims for damages under discrimination and dismissal, whether wrongful or unfair, would plunge the company into legal battles, which would effect both their reputation and their monetary situation. The action of surreptitious testing would contravene basic human, as well as employee rights, and it seems that their only excuse is that it is in order to protect themselves from future damages. Their aims seem paradoxical as in trying to prevent damages they are breaking the law, thus inviting further and more aggravated problems. I would advise Sam to ask his fellow directors to consider abandoning the proposal.

Bibliography:

1. Primary Sources:

(a)Legislation

Statutes

• Unfair Contract Terms Act (1977), Crown Copyright 1977, Stationary office ltd

• The Disability Act (1995), Crown Copyright 1995, Stationary Office ltd
•  The Employment Rights Act (1996), Crown Copyright 1996, Stationary Office Ltd
• The Data Protection Act (1998) Crown Copyright 1998, Stationary Office Ltd
• The Human Rights Act (1998) Crown Copyright 1998, Stationary Office Ltd
• The Employment Relations Act (1999) Crown Copyright 1999, Stationary Office Ltd
• The Employment Act (2002) Crown Copyright 2002, Stationary Office Ltd

(b) Cases

• Bliss v South East Thames Regional Health Authority [1985] IRLR 308
• Burdett-Coutts and others v Hertfordshire County Council [1984] IRLR 91.
• Hurley v Mustoe (No 2) 1983
• Polkey v A E Dayton Services ltd [1987] IRLR 503
• Ridgway v The Hungerford Market Co [1835] 3 Ad & E1 171

(c ) Books

• Adams, J and Brownsword, R; Understanding Contract Law; Sweet and Maxwell, 3rd edition; 2000
• Barrow, C et al; Blackstone’s Guide to the Employment Relations Act 1999; Blackstone Press ltd; 2001
• Byre, A; Leading Cases and Materials on Social Policy of EEC; Kluwer Law and Taxation publishers; 1989
• Donahue III, J; Foundations of Employment Discrimination Law; Oxford University Press; 1997
• Korn, A; Blackstone Press ltd; 1997
• McGlyne, J.E; Unfair Dismissal Cases, 2nd edition; Butterworths; 1979
• McKendrick, E; Contract Law, Palgrave Law Masters, 4th edition; 2000

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