Transcript Training

Employment Law
Peter Forster
BMA NW Centre
March 2008
1
Employment Contracts
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What is a
Contract?
Employment
Contract
Terminating a
Contract
Varying a Contract
2
What is a contract
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Offer
Acceptance
Consideration
Intention to be
bound
Terms are certain
3
Contract Terms
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Express terms
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Implied terms
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Incorporated terms
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IMPLIED TERMS – Employers(1)
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To pay wages
To provide support
Not to treat
employees in an
arbitrary/vindictive
manner
To provide a safe
system of work
To inform employees
of important decisions
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IMPLIED TERMS – Employers(2)
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To take reasonable
care
To allow access to
grievance procedures
To maintain trust and
confidence.
To give support
against harassment.
Not to undermine a
supervisors authority.
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IMPLIED TERMS - Employees
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To co-operate with
employer
To obey reasonable and
lawful instructions
To exercise reasonable
care and skill
To act in good faith and
fidelity
To adapt to reasonable
changes
To maintain a relationship
of trust and confidence
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Written Particulars of Employment
Names
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Date
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Continuous employment
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Job title or brief description
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Pay, scale, interval
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Place(s) of work
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Hours of work
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Pension
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Holiday entitlement
PLUS…….
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disciplinary rules
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grievance
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Components of Contract.
Written Statement
of contract
Also.
 Job Advertisement
 Letter of
Appointment
 Job Description
 Collective
agreements
 Implied terms
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Contract Procedures
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To ensure as little ambiguity
as possible in the
employment relationship
ensure that;
contracts are in writing
terms are stated clearly and
concisely
reference is made to
‘incorporated’ documents;
receipt of documents is
acknowledged
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What is Dismissal?
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Employer terminates
the contract
Expiry of a fixed term
contract
Redundancy
Constructive dismissal
Refusal to allow
employees to return
following pregnancy
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Fair Dismissal
Five potentially
fair reasons
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Fair reasons for dismissal
1. Capability.
2. Conduct.
3. Redundancy.
4. Contravention of
a statutory
enactment.
5. “Some other
substantial
reason”.
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EXAMPLES - S.O.S.R.
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Third party pressure
Personality clash
Imprisonment.
Dismissing replacement employees
Dismissal of spouse
Misrepresenting facts on CV.
To make room for an employers son
A refusal to accept changes in terms and
conditions
Most dismissals under this heading arise because the
employer is taking action to protect his/her business
interests
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Automatic Unfair Dismissal
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taking leave for family
reasons
performing certain health
and safety activities or
functions as a trustee of an
occupational pension
scheme or functions as an
employee representative
the making of a protected
disclosure
asserting a statutory right
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taking certain steps under
the NMWA
seeking to benefit from tax
credits
holding the status of a
part-time worker
participating in ‘protected’
industrial action or in trade
union membership or
activities
spent convictions
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Constructive Dismissal
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Constructive Dismissal.
“If an employer is guilty of
conduct which is a significant
breach going to the root of the
contract, or which shows an
intention no longer to be bound
by one more essential terms of the
contract, then the employee is
entitled to treat himself as
discharged from any further
performance”
Western Excavating v Sharp .(1978)
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Constructive Dismissal
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Unilateral change in
pay.
Failure to pay salary
increase.
Change in job duties.
Downgrading.
Imposing disciplinary
penalty without
complying with
procedure
Breach of trust and
confidence
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Mutual trust and confidence
EXAMPLES
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Abuse and insults - calculated
to destroy the relationship
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Reporting an employee to the
police for dishonesty without
an adequate basis
Having a highly critical letter
of an employee typed by an
office junior
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Constructive Dismissal
- ‘Last Straw’ Principle.
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“……the last action of the
employer which leads to
the employee leaving
need not itself be a
breach of contract; the
question is, does the
cumulative series of acts
taken together amount to
a breach of the implied
term”
Squeezing the employee
out.
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Variation of Contract
Agreed changes:
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either orally or in writing
through collective bargaining
employee works in
accordance with
new arrangements without
objecting
term allowing for variation
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Business
reorganisation.
“Employers must not….be put
in a position where, through
the wrongful refusal of their
employee to accept change,
they are prevented from
introducing improved business
methods in furtherance of
seeking success for their
enterprise,”
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Fair
Procedures
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Informing the
employee
Thorough and careful
investigation
Opportunity to
prepare case
Disciplinary hearing
Opportunity to present
case
Right to be
represented
Right of appeal
Appropriate penalty.
23
Procedural shortfalls…….
“Where employees won their
claim, their success related
almost without exception to
procedural shortcomings on
the part of the employer”
24
“Small Firms are
particularly vulnerable to
defects in their procedures
- if they have a procedural
approach at all - and this
failure leads to unfair
dismissal claims”
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DISMISSAL FAILINGS
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A “warning” not made explicit.
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No procedure at all.
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Procedures not applied in full.
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Procedure contrary to the employers
own rules.
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Dismissed during an argument.
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Insufficient time to rectify
shortcomings.
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Over hasty use of procedure.
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Disciplinary Meetings
“[The finance director] said
that the applicant was to
come to a meeting at his
office the following day, and
at that meeting he would
‘tear up his contract and
shove it up his *!*!*!*’.
(STOCKPORT COUNTY F.C.-v-
BERGARA. 30/6/97.EAT. 625/96)
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Compensation (from 1 Feb
2008)
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*
Unfair Dismissal - £63,000 max*
Redundancy - £9,900 max
Discrimination (race, sex, disability,
age) – No Limit
No limit where employee is dismissed unfairly or selected for
redundancy for reasons connected with H&S matters or ‘whistle
blowing’
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Statutory disciplinary & grievance
procedures
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Effective from October 2004 but soon to
be repealed!
Introduced substantial changes to the law
on unfair dismissal & the admissibility of
tribunal claims
Seek to ensure that no major decisions
affecting an employee’s employment are
made without basic procedural steps
having first taken place.
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Most common causes of
disciplinary action
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Absenteeism.
Poor performance.
Time keeping.
Disobedience.
Dishonesty.
Bad language.
Smoking.
Drink and drugs.
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Fighting.
Harassment.
Breakdown of working
relationship.
Disloyalty.
Third party pressure.
Conduct outside
employment
Personal appearance.
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Absenteeism
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Unauthorised
absence.
Overstaying leave.
Long term ill health
absence.
Persistent short
term absence.
31
Persistent short-term illness
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fair review of attendance
and reasons
return to work interview
operate disciplinary
procedures reasonably not
oppressively
assess effect on other
employees
obtain medical reports
past attendance record
future attendance
no set tariff of days
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Long term illness
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regular contact
when is return
likely
is alternative work
available
medical evidence
job can’t be held
open indefinitely
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Personal Appearance
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subjective opinion
- not enough
the reason for
requirement
contract
employees reason
for objecting
enforcing
standards
34
Poor Performance
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skill, aptitude,
health or other
physical or
mental quality
setting standards
length of service
previous
performance
extent of poor
performance
35
Performance monitoring and
standards
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careful recruitment
and selection
standards explained
accurate/up to date
job description
performance
appraisal
promotion - failure
to make the grade
36
Breakdown of working
relationships
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is it irredeemable
can the situation
be improved
(counselling)
have alternatives
been considered
(transfer)
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Disloyalty
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implied duty of
fidelity
breach of
confidence
working in
competition
soliciting
customers
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Business Reorganisation
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work remains the same - different
mode of performance
sound business reason
sensible reaction to employees
refusal
fullest possible consultation
managerial prerogative
are new terms reasonable
consider redundancy
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Getting Advice
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BMA – Regional
Centres
www.bma.org.uk
ACAS – Helpline
08457 474747
www.acas.org.uk
Dept Of Trade and
Industry www.dti.gov.uk
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ENDS
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