employment Flashcards
(181 cards)
1
Q
formation of contract essential
A
consensus in idem
both have lagel capacity
intention to create legal obligations- no coercion
2
Q
employment formation
A
offer/acceptance- accepted by action not silence (must be unqualified)
monetry considereation between parties
mutuality of obligations
3
Q
is htere consensus in idem?
AVINTAIR v RYDER AIRLINE SERVICES
A
‘there is no doubt that the parties must achieve consensus in idem on all essential matters’
4
Q
lord dunedin in may and butcher
A
a concluded contract is one whihc settles everything necessary’
5
Q
consideration - MONETRY in order to claim under era
Melhuish v Redbush CAB
A
was aa volunteer not elligable to claim UD
6
Q
READY MIXED CONCRETE v MINISTER OF PENSIONS
A
there must be wages or renumeration for employment contract
7
Q
is writing necessary
A
ERA s.1 no dut there is duty to draw up statement of wrtten particulars
8
Q
Windle v sec of state for justice
A
distinction as a worker- EAT ‘distinctions are central to the level of employee protection afforded to employers and employees
9
Q
employment status is case law dependent
other that section 230 ERA
A
definition of employee re their right to written statement
it is an ‘individua who works under a contract for employment- when does this occcur?
10
Q
Worker
A
defined in s.230(3)
covers normal employees but also thos who dont have a an employment contract but a contract for atypical workers
11
Q
Atypical workers
A
casual workers
volunteers
agency
12
Q
CASUAL WORKER
o’kelly v trusthanne forte
A
she worked in hotel- held to be casual worker
13
Q
CASUAL WORKER
Drake v Ipsis mori ltd uk
A
he was called in regularly EAT said was casual worker but stated that if you work under a successsion of individual contracfts you may be deemed to be employee
14
Q
VOLUNTEER
melhuish v redbush
A
must be monetry consideration otherwise not eomployment contract - no unfair d
15
Q
Murray v Newham- volunteer
A
volunteered at specific times, given training and had minimum times- held to be an employee- exceptional circumstances- was also given renumeratin for travel
16
Q
AGENCY WORKERS
3 parties to contract agency, worker and end user
Montgomery v Johnson Underwood
A
held not employment contract
as NO MINIMUM OBLIGATION - this was pre the AGENCY WORKERS REG 2010-
he hadn’t worked long enough fro mim mutual obligation arise
17
Q
FIXED TERM WORKERS
RS dillon & Dillon partenrship v Revenue and Customs Commission
A
haulage company- fixed amount per shift, but he could refuse work
trainign necessary for safety stabdards Were they working fro own account?
deemed employee due t level of CONTROL i.e. necessary stringent training and fixed amounts
18
Q
dillon case 3 fold test for employee
A
are they in business for their own account
is there a mutuality of obligations
are they able to bring in a substitute
19
Q
pimlico plumbers v smith
A
claimed unfair d - court said was employee due to level control had ot wear uniform, drive logo’d van but supplied own equipment- deemed employee
20
Q
Duheirst v city sprint ltd
A
seeking to be paid for two days holiday, employee would be entitled to holiday pay, he was held as employee due to level of control- he had to exclusivly work for them and had to sign in and out of work
21
Q
ERA s. 230 TULRCAS 295 (1)
A
a contract for service wether EXPRESS or IMPLIED and if express either orally or in writing.
22
Q
does a contract exist?
is it a contract for services or of service
A
MAckenna J in Ready Mixed concrete v min of pensions– set out the test;
- mutuality of obligations i.e. in montgomery, no contract, no min ob
- control
23
Q
MUTUALITY OF OBLIGATIONS
Carmichael v NAtional power
A
guides contracted on casual as required basis
no obligation for national power to offer work- thus no minimum obligation
no contract
24
Q
lord irvine in carmichael v national power
A
’ an irreduciable mimimum of mutual obligations is necessarry to create a contract for services
25
four seasons hotel ltd v Hamerat
wine waiter for 7 years- casual worker or employee
held to be employee- sufficient control and an irreducialble (lord irv in carrmichael) min of obligations developed over time unlike in montgom wheere mut of ob not had time to develop
26
CONTROL - came about due to Vicarious liability claims
| Cassidy v minister of health per lord denning
' if a doctor is unable to trat a man and sends him on to hospital, are the hospital authorities not then under an authoirty to treat him?'
27
Murray v Newham
although volunteer held to be employee due to stringent levels oof control i.e. specific times, compulsory training and travel renumeration
28
Dillion & Dillion and partnerships v HMRC comissions
part time worker but had meet trainign requirements and competency standerds and fixed amount per shift
29
duieheirst v city sprint
exclusive to that company/signing in and out
30
INTERGERGRATION
is their wowrk integral to the running of the business/organisation
look at wether contract for/of service/s
31
conLord denning gave definition in stevenson, jordon and harrison v macdonald and evans
contract of service- employed as 'part of the business and their work forms an intergral part of the business'
contract for services- is not integrated into business but is an ACCESSSORY TO IT
32
PERSONAL SERVICES - IS IT VITAL THAT THEY DO THE WORK OR CAN ANOUTHER SIMILARLY QUALIFIED PEROSN DO IT
express and echo pulications v taunton
found to be contract for services- as could easily have job doen by soemone else as a releif driver, can arrange for suitable person to take over role
33
mackenna J in ready mixed concrete defined what was necessary for contract of service
The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.
(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master.
(iii) The other provisions of the contract are consistent with its being a contract of service.
34
ECONOMIC REALITY
are they in business for own account
35
mackenna J use dterm 'other provisions- what does this mean?
MArket investigations ltd v minister of social security
Cook J stated that if working to own account will be services. said that there is not an exaistive list of other thinsg can look at ;
- contorl
-own equipment
- can they hire their own help
- degree of finanial risk
- responsibility for management
- is there musch of an oppurtunity fro profit
- are there tax/insurance/ PAYE deductions
what would ordinary perosn think was the intention of parties.
36
SHAM CONTRACTS
| redrow homes v wright
brick layers, said should be given holiday pay
redrow put clause in contract saying that workers were allowed to subcontract- done in hope that would show lack of control i.e. in express and echo v taunton re someone else able to to job, they had maanged to insert the clause in through prudent drafting following idea that services need to be perosnal fro a contract of service to exist.
what cook j said in market investigations re being able to hire out your work .
were employees.
in next case redrow homes v buckbourgh they activly ruled that the calsue was designed as a sham.
37
art 1 ERA
requirement ot be given statement of written aprticulars , article details when the statement should be given i.e. within 2 months
is not a contract, does not define the rights an duties of employment
38
art 2
the information that needs to be contained in statement this bought he EC directive 91/533 into our law
39
s.1(3)
who is entitled- date they begin continuous employment is when they are entitled to get one
40
Thames side court esatte v jones re continuous employmennt
wished to bring claim of unfair dismissal. court said switching employment not deemed to be continous but due to S.218 ERA- IF immediatly move ebtween associated employers- can be continous employment. in this thames side case was deemed to be continuous. you must ahve had two years of continous employment to claim for unfair dismissal
41
if under one month of employment
statment not required but reccomended- must get it within two months of starting work
42
era s.5.1
doesn;t defien a month but a year is defined as 12 calender months
43
s.1(3) era should contain
names of employee/er
| date of begining of continuous employment
44
Eagland v BT
clearner, bt mistakenly though was self eployed, held by et as employee so needed statement then was given incompletle statement- held that tribunal can say what OUGHT to be in the statment but they cannot INVENT terms not previously agreed, cannot write statement
no sanction if an inocmplete statment- talk that will have two weeks pay as compensation but at moment no statoury provision
45
powers of ET section11
can ammend, confirm or add particulars
an inaccurate statement refferred to ET will automatticaly contain ammended point but will not add extras
section 4 era governs ammendements
46
System floors v daniel
usually the statement can be pursuaive as to terms of employment but in this case re a dispute over start of employment- the stament held to be an employer unilatereal view of the agreeement.
47
browne wilkinson in system floors v daniel
'at most the terms of the written staement are place a HEAVY BURDEN on the employer to show that the actual contract terms are different from tose set out in the statement
48
content of employment contract - express terms
restrictive covenents- limit what can do after employment
- only enforable if necessary for protectiom
- only certain area at set time
- must be an express term
49
implied terms
| 2 tests
officius bystander test
| business efficacy test
50
officious bystander
| defined by mackinnion LJ in SHIRLAW V SOUTHERN FOUNDARIES
something so obvious that is goes without saying... if a bystander were to suggest if, it would be supressed with an 'of course'
51
bussiness effocacy test
| RELGATE V UNION MANUFACTURING CO
tersm can only by implied if they are necessary in a businesss sense- of course, they would have agreed on it at the time i.e. for employer to provide reaosnable workplace
52
implied conditions in law
```
can never over rule implied term in law
setcion 73(1) if do not cover maternity leave then will be imploed, contract treated as includung it.
```
53
implied terms in law
| JOHNSTONE V BLOOMSBURY
DOCTOR WORKING OVERTIME AS REQUIRED meant in total working over 100 hours a aweek held was implied duty of employer to look after health and wellbeing. you cannot rely on an express term i.e. re over time if it contradicts an implied term
54
types of implied terms
```
place of work
mutual trust and confidence
notice
reasoanble orders
reasonable care
```
55
place of work
usually express if not court will imply
56
courtaulds northern shipping v sibson
driver based at depot, required to trasnfer, no express term re place of work. said employer can move employee anywhere within a reasonable distance of home and so long as transfer on reasonable and genuine grounds
express mobility clauses will be upheld usually- see unitebank v aktar
57
Unitebank v aktar
court restricted an express mbility clause- told him to move to work 2 hours from home, given 1 week notice and no travel expenses.
for clasue to be so wide was unreasonable - said should be upheld
this mobility clause had the result of also rbeaking the implied term of mutual trust an confidence in contrast to RANK XEOROX V CHURCHILL- court upheld an expresss mobility clasue and refused to limit its application
58
jones v associated tunnelling co ltd
```
implied mobility term will according to SLAD LJ be ' the term to be implied must depend on the circumsatcnes of each case'
look at the
- nature of employment
- what employee told when employed
is there a provision to cover expenses
```
59
implied term of NOTICE
section 86 ERA and common law- notice cannot be shorted than in s.86
2-12 years work- 1 week for each year
12 plus- 3 months
60
common law
| hill v parsons
LORD DENNING
commented on the engineer's 25 year service- reaosnable notice in this case would be 6 months ideally 12.
if commit gross misconduct then s.86(^)- do not need notice
most contracts have notice clause
61
repuiatory breach
1 party able treat cotract as terminated and void with immediate effect- sue for damages
62
Implied term
MUTUAL TRUST AND CONFIDENCE
COURTAULDS NORTEHRN TEXTILES V ANDREW
dufferent to case re mobility- ahd worked 18 years and told 'couldn;t bloody do job proper;y anyway' hedl thar breached trust and confidence this consituted constructive unfair dismissal
63
Malik v BCCI
implied obligation on employer not to carry out CORRUPT business as will effect employment prospects of employees in future- - able get compensation. breach trust and confidednce
64
JOhnson v Unysys
he had time off work for stress and received councelling, found that the manner in which he had been dismissed was gounds for wrongful dismissal and breached trust
65
LAWFUL AND REAOSNABLE ORDERS
| PEPPER V WEBB
gardner given logical and reaonable order to claer greenhouse and he refused- this was grounds to be dismissed
66
Blyth v scottish liberal club
despite genuinly not thinking that role was part of contract - still in breahc for not performing
67
Glitz v watford electrical
job title was general clerical duties, she refused do one job as said gave her headache offerred another and still refused- both reaosnable within job destrictption- dissmissal fair as she hadn;t doen things within her contractual duties
68
regulation 4(1) working time regulations 1998
not to exceed 48 hours a wheek overtime unless expressly agreed on, although in johnstone v bloomsbury doctor- working 100 hours a week breached implied term in law
69
s.57A ERA
time off for dependents contains set list of dependents.
time off proportionate to what has happened- if are able to organise care should d this as soon as apossible.
tell employer as soon as reoanably practical when will be back- s.57A (2)
time off is unpaid but it is an implied term that absense is allowed if forbiddon can calim rights under s.57A
unless expressly in contract usually specialist appointments allowed but not routine checkups
70
s.55-57
re pregnancy- allowed paid leave for appointments, show cards as proof- also been allowed for agency workers see also re employment status - mongomery v johnson underwood no mut ob- and AGENCY WORKERS REG 2010-
71
s.57(2)(e)
somone with qualifying relationship to pregnant woman/unborn child- take unpaid leave to go to appoinments- limited to two 6 1/2 hour appointments.
this is a day one right i.e. no need to be in continuous employmenet
72
s.57(2)(e)
somone with qualifying relationship to pregnant woman/unborn child- take unpaid leave to go to appoinments- limited to two 6 1/2 hour appointments.
this is a day one right i.e. no need to be in continuous employmenet
73
implied term of reasoanble care
health safety adn wellbeing of the employee
| Johnstone v bloomsbury
74
Walker v northumberland
breakdown off for 4 months, fired for second breakdown- he got damages for this as he had informed them of first breakdown
reinforced the bloomsbury idea of looking after mental health- also mutual duty fro employee to work to the best of their ability
75
duty to provide work
so long as wages no need for work- geneeral rule
76
Turner v sawdon
agreed to emply and enage for 4 years, refused give work but paid wages- no breach as no obligation to give work
77
collier v sunday reference publishing per Asquith LJ
also in keeping with turner ' provided i pay my cook regularly she cannot chose to complain if i take any or all of my meals out'
78
standard life healthcare v gorman
re payment by commission- sales manager working by commssion- worked over notice period with new company as SL not providing work, still being paid by SL- this was held to be a breach as SL still paying nad like in collier and turner no ob to provide work
you are still contractuallt attached to empyer during notice period
79
exeptions to the rule re payment and providing work;
| Tucker v william hill
he needed to keep up and maintain his skills- put on garden leave for six month notice period and still paid- held was obligation to provide him with work to keep up skills n line with HOL case
80
Clayton v oliver
actor didn;t get leading role able to refuse to save reputation
viscount dunedin- 'give him the oppurtunity to perform in front of the public in a part which answwered to the stipulated description.
81
breach v epsolym
need keep up to date wiht market trends and developments- obligation to keep him at similar skill level and maintain work as a cheif engineer
82
DUTY TO PAY WAGES
| ADAMS V CHARLES ZUB ASSOCIATES
resigned due to unpaid wages employer said working on big account- allowed leeway but deemed bad managemnt- COOLING OFF PERIOD if laid off no duty to pay wages
83
small business and enterprise and employment act 2015
re zero hours
| section 53 exclssivity clauses are illegal. this act defines sero hour contracts
84
garden leave
oay wages, allow new satff to come in i.e. tucker v william hill- not applicable if need mainitain skills often GL is tactical as restrictive covenents are express and garden leave can be implied.
85
garden leave
oay wages, allow new satff to come in i.e. tucker v william hill- not applicable if need mainitain skills often GL is tactical as restrictive covenents are express and garden leave can be implied.
86
implied duty of fidelity
i.e. malik v bsci - implied obligation not to conduct corrupt dealings- employees tarred by dishonest repuation of company
87
duty of employees
| FAIR DEALING - within the implied duty of fidelity on both parts
of honesty and good faith are implied in the contract
88
sinclair v naighbour
stole money from till adn was summarily dismissed - no notice result of gross misconduct
court said relationship of mutaual trust and finelity destroyed employer now lost confidence
89
summers LJ in sinclair v naighbour
the whole question is wether that condiuct was of such a type that was inconsistent and in a GRAVE WAY incompatible wiht contract of employment
90
Sybrom v Roacham ltd
there is a duty to disclose the misconduct of other employees but no duty to report your own. But due to his manageria; position, he still had to report misconduct of other employee even though it would mean his conduct would be found out- thi was a breach duty of trust adn fidelity
91
Bell v Lever brothers
LORD ATKIN- at length described that nno duty to report own misconduct, duty not to steal but once stolen no duty to inform - but this may develop further up the heirarchy- duty to disclose own misconduct- sybrom v roachem this turns on circ of cases
no legal duty to report others but a MORAL/IMPLIED CONTRACTUAL duty
92
working for another employer- this is part of implied duty of fidelity
usually espress- if breahc amy be material result in contract termination. if not express then is not an implied term
93
HIVAC v ROYAL PARK SCIENTIFIC INSTRUMENT
worked for scientific instrument in spare time. he wasa told not to wokr for them and given injunction re confidential information- breahc as he was a skilled workr i..e not just a cleaner
94
lord greene in hiva v royal scientific instument
it would be deplorable if it were laid down that a workman could KNOWINGLY AND DELIBERATLY and secretly set him self to do something in his spare time something that would greatly impacy on his employers business. CONTRAST to nova plastics v froggart- had no access to confidential info so no breach
95
Sanders v perry
trainee solicuior- if move all clientele and business to a new company this is a breahc of duty of fidelity
96
restrictive covenents
must show are necessary to protect business
| must be express
97
sadler v imperial life assurance
form of attempted restrictive cov. by paying them a post termination commmsion , said they couldn;t work for competitors- held to be UNLAWFUL RESTRAINT OF TRADE
98
wessex dairies v smith
canvassed customers- this was breach of duty of fidelity to employer as building up clientele which still in initial contract- not showing loyalty. if it was a director they would have a higher - fiduciary diuty t which ahve undivided loyalty
99
directors fiduciary duty
this is impled - highe rlevel loyalty trust and confidence
100
whitmore v gormage
example of an EXPRESS fiduciary duty- - he was not a director but due to express term the using of client info was a breach
101
Customer systems v Ranson
breahc of fiduciary duty by copying invoices for benefit of own new company in contract it said expressly 'you agree to keep this info confidential'. courts said as not a director, had only breached the implied duty of fidelity (sanders v parrt -solictor, hivac, nova plastics unskilled, sinclair v nairghbour- duty act good faith, re money) not a fiduciary duty as it was not expressly written in
102
how confidential is info
| FACENDA CHICKEN LTD V FOWLER
NEIL LJ said to look at
- nature of employment - to what extent are they exposed to confidential info
- nature of information - ' will only be protected if it is a trade secret or highly confidential in nature'
in this case it ws not deemed to be a trade secret
103
neil lj's description of a trade secret
a chemical formula, design or speical manufacturing process of a sufficently high degree to eb considered a trade secret
you should be TOLD if information is confidential.
104
initial srvices v puttinell
if in the public interest candisclose information whihc may be deemed confidential in reagrds to employers misconduct
105
injunction
can be takne out to stop former employees entering into contracts with former customers- PSM v whitehouse i.e in sanders v parryre solictor there was an intention to compete
106
robb v greene
copying client info with the intention to sue them in new company- breach good faith and fidelity as seen in customer systems v ranson- no express fiduciary duty so that not breahc but there is an implied duty of fidelity adn of mutualt trust.
107
if don;t knwo information is confidential
| Vestagrad Frandsten SA v Bestrad Europer Ltd
not aware infor was confidential- court said not liable in this case if cannot be reaosnably expected to kwno without being told- no breahced duty
108
Dalgleish v lothian and borders police force
employers duty re confidentiality- injubction granted o stop employer disclosing employee details without consent
109
Termination of employmetn
```
wrongful dismissal
unfair dismissal
constructive unfair dismissal
summary dismissal
frustatrion
```
110
section 86
minumum notice periods
111
apprenticships
fixed term so can only be terminated on conduct and capabilities- cannot be made redundant
112
frustartion
only after formation of contract when neither party at fault but even renders prformance impossible or not possible to expected leve/different outcome . are different types of frustartion
113
LONG TERM ILLNESS
| Marshall v ahrland and wolf - donaldosn test for frustartion
no frustration- held it was not a long term illness so was able to get redundancy pay- lord dinaldson in this case indicated test for frustration on illness;
- terms of contract i.e how long sick pay to go on for?
- if not ill how long was period of employment meant to be
- nature of employement
- nature of illness and liklihood of recovery- on amrshall case not sufficent to frustarte
114
egg stores v leibovici
had been paid after car crash as sick pay but been awya so long that reaosnable to have founda replacesment so long that contract automatically frustrated
- is there need for replacements
acts of employer
given the circumsatcnes of employment is it reoasonable to wait longer before frustartion
115
Imprisonment
not frustartion as fault onesided?
116
FC sheppard v jerron
held was frustartion after apprentice impriosoned for indeterminate time- court said impsiition of sentance was the fault of the judge - frustration occured and contract just ceases to exist
117
harrington v kent city council
conviction successfully appealed, contract frustarted at moment of conviction and cannot be resureccted- took him back but on WHOLE NEW CONTRACT
118
section 139 ERA
frustartion takes away respoinsbility cannot claim fro unfair dissmissal
119
TERMINATION BY AGREEMENT
| Igbro v Johnson MAthay
signed clause saying if not back certain day contract would terminate- ill so didnt PARKER LJ- for this to not count as unfair dissmissal would mena employers could easily defeat employment law.
120
if agreement compeletly mutual
| Birch v universty of liverpool
signed early voluntray retirement clause for compendation scheeme then tried to claim redundancy pay as well- no as termination mutually agreed on
121
automatic termination
i.e. if contract said it would end when funding fro job ended- brown v knowlsly
122
sections 94-98
dissmissal
123
wrongful dissmissal
common law dissmissal
must be repudiatory breach- so severe that entitled to treat contract as terminated with immidiate effect
when givven little or no notice
common law breach
124
wrongful dissmissal rememdies
DAMAGES
INTERDICT
SPECIFIC IMPLEMENT- that dissmissal not correct- must continue performing contractual duties
125
unfair dissmissal
statute created- aprt 10- section 94-98 of employment act 1996.
have three months to claim this from EDT- effective date of termination
3 remedies
- reinstatement
re-engagement
compensation
126
how to terminate a contract
automatic termination
| elective theroy of termination
127
automatic theory
act of repudiation is enough to terminate contract- must be severe
128
sanders v neal -automatic theory re strike breach
unofficial strike, didn;t come back to work after date employers said contract would be terminated- there was an automatic termination of contract on his repudiatory breach- the breahc doesn;t need to be accepted by eitehr party- the contract dissapears
129
White and Carter v MAcgregor
| elective theory
innocent party can elect to affirm contract i.e. through specific implement or can terminate
white an carter- adverts fro garage- tried t cancel contract but under eletive thoeory he could either accept repudiation adn damages or ENFOREC the contract- garage liable for payemtns- issue with this is must continue working together
130
problems with elective theory
| Professor Douglas Brodie, “Recent cases, Commentary, The Heart of the Matter: Mutual Trust and Confidence
' to get an order for specific impeltmt or affirmation of a contractual performance is VERY DIFFICULT and negativly effects relationships'
131
also in hill v parons re engineer as per lord denning
it is WRONG to enforce a contract which needs personal confidence between parites wehre that confidence may not exist.
132
powell v brent
mutaul confidence is a necessary thing, if one party refuses to perform and continue the relationship mutual confidence IS ALMOST CERTAINLY MISSING.
133
spring v guardian assurance
gave bad reference- broke mutual trust and confidece in
134
in spring v guradian assurance, LORD STYNE made an insightful comment about the changes to employment law
there are now FAR GREATER DUETIES impose don employers than in the past, to care for the PHYSICAL, FINANCIAL and even PHYSCHOLOGICAL WELFARE of employees'
135
date of election
re termination
136
Gunton v Richmond on thames
given notice for termination prior to results of disipliary hearing- he claimed damages for unfair dismissal without a hearing, held that by claiming damages, on that day he accepted repudiation of the contract
shows that law now favours the elctive theory
137
boyo v lambeath
followed gunton v richmond on thames- he was dissmissed for misconduct disciplinary period longer than notice period- he sued for damages- on the date claimed damages was deemd to have elected to repudiate contract
138
gayes v societe generale
if you repudiate this only happens on the day that the innocent party decides to repudiate- must elect through damages (gunton v rot or boyo v lambeath) or another way
139
controversy surroundign the automoatic theory of termination
Lord executive v clark- dunn and templeman LJ soughr to lay at rest the principle fo automatic termination saaing it as 'contrary to principle, unsupported by authoirty binding on this court and undesirable in practice'- it was manifestly unjust to allow a wrongdoer to automatically terminate employment if the innocent party wanted to affirm the contract- the innocent party must be allowed to accept the repudiation and sue for damages. However lord denning dissented saying this put too much weight on the employer
then followed by boy v lambeath where courts bound to hold that unlawful repudiation of a contract (wrongful dismissal) was of no effect until accepted but majority of court said if was no authoirty, they would have come to opposite decision.
lord wilson pointed out in socite general that there is nothing to prevent the innocent party using the elective theory to elect to treat the contracta s immediatly terminated but it is his decision to do so.
140
summary dissmissal
| Laws v London chronical
wether the conduct complained of is of such to show that the servent DISREGARDED the ESSENTIAL CONDITIONS of the contract of service
can be found in one action of the employee- blyth v scottish liberal club- didn;t think was doing anything wrong but was.
only gross misconduct will justify summary dissmissal, to amount to this it has been suggested that the employees activities must indicate a desire of 'wilful breach of contract' summary dissmissal has been justified in cases of;
series of incidents of intoxication- CLOUSTON & CO V CORRY
taking of secret commissions breaching duty of fifelity- BOSTON DEEP SEA FISHING CO V ANSELL
gross negligence- i.e. in JUPITER GENERAL INSURANCE CO V SHROFF, went behind directors back and insured someone he had earlier refused.
willfull disobedience ot attend meetings- blythe case
dishonesty i.e. stealing money in the betting shop- sinclair v neighbour.
141
summary dissmissal
| Laws v London chronical
wether the conduct complained of is of such to show that the servent DISREGARDED the ESSENTIAL CONDITIONS of the contract of service
can be found in one action of the employee- blyth v scottish liberal club- didn;t think was doing anything wrong but was.
only gross misconduct will justify summary dissmissal, to amount to this it has been suggested that the employees activities must indicate a desire of 'wilful breach of contract' summary dissmissal has been justified in cases of;
series of incidents of intoxication- CLOUSTON & CO V CORRY
taking of secret commissions breaching duty of fifelity- BOSTON DEEP SEA FISHING CO V ANSELL
gross negligence- i.e. in JUPITER GENERAL INSURANCE CO V SHROFF, went behind directors back and insured someone he had earlier refused.
willfull disobedience ot attend meetings- blythe case
if summariliy dismissed with no notice- if your notice would ahve pushed you into the qualifying period for continuous employment for two years so are able to claim unfair dissmissal then your contract is deemed to have included it ie.e. if deliberatly dismiss three weeks before notice period
142
laws v london chronical
the action of the female employee leaving the room during an argument when director had said 'don;t you dare leave the room' was not deemed as gross misconduct lawfulness of dismissal depends on position of employee, their track record (i..e in pepper v webb there was a history of insolency in comparison to wilson v racher where there was a heated discussion adn he said get stuffed to employer, this was not deemed serious enough fro a summary dissmissal, had no track record of ineffiecncy or rudeness) and social conditions of the time
143
section 94(1) ERA part 10
an employee has the right not to be unfairly dissmissed by his employer
doesn't cover workers, volunteers or agency workers
barred if police, share fisherman or part of national secuirty- s.202
if you are from northern ireland the era doesn't apply
144
LAwson v scott
worked abroad for uk company (didn;t count) but man working for a honk known company but living in the UL did count but lord hoffman did say that if sufficiently close to uk employment law may be covered
145
qualifying period
until apr
il 2012 was only one year now is 2 if you ahve been employed after april 2012- UNFAIR DISSMISSAL AND REASONS FOR UNFAIR DISSMISSAL ORDER 2012.
146
exceptions to qualifying period
if dissmissed for one of these reaosn then do not need to meet the qulifying period
pregnacy childbirth ect - s.99-100
if fired for membership of trade union- s.152
health and saftety breach of employer s.100
breahc of working time period s.101
breach of employer statory rights i.e. s.57 dependents these al result in automatic unfair dissmisal.
147
when is dismissal deemed to ahve taken place
after the employee has had a reaosnable time to read- to clim UD there must have been successful communication of the dismissal
148
brown v southall and knight
tried to get around the stautory requirement of qualifying period by sending letter dissmisal just before the end of qualifying period but did not allow time for the dismissal to be communicated thus resulted in unfair dissmisssal - he was on holiday and by the time back the statutory requirement for unfair dissmissal was on them- this met the requirment for unfair dissmissal
you cannot deliberatly not read- this will not result in unfair dissmissal.
149
summary dissmissal
commmmitted a fundamental breach i.e. in laws v london chronical where given two conflicting orders, was not gross misconduct to obey one and not other
150
Denco v jamieson
unauthorised access to a company computer was deemed to be gross misconduct
151
2004 code of practice
for gross misconduct i.e. theft, fraud, violence see above notes
152
summary dissmissal
series of minor events can be enough- pepper v webb 'i couldn;t care less about youa nd your bloodygreenhouse or sodding garde'- deemed to be a climatic occurance in ta long chain of insolency and inefficiency
153
williams v leeds ltd
reasons for dissmissal can be brough a long time after actual dissmissal i.e. in this case investigation into pronographic email took 5 years
154
time limits
| s.111A ERA
if you feel you have been UD dismissed have 3 months to claim
can be longer if tribunal feel there are reaonable excusees as to why- 111(2) b
must be presneted to a tribunal
155
section 97
presentedd- means the day the letter is delivered- hammond v haigh castle- sent by post but if by email when is sent or submitted- autistic society v smith- held as presented the dya he submitted it onto website.
section 95- when the dissmissal actually deemed to ahve taken place
156
Tanner v Keen
words in heat fo the moemnt must have the intention behond the words, allow a few days cooling off.
'you are a tight bastard... i gave you money for a car... thats it we are finnished'- no dissmissal as INTENTION not there
157
davy v collins
arguing about money 'you can fuck off' again no dissmissal
158
kwik fit v leinham
resignation made in haste and anger
| reasonable amount of time needs to be given to decide if that was their intention
159
sheffield v oxford controls
told if didn't resign he would be dismissed
| if he had left soley due to the threat then this would have been unfair dismissal
160
international computers v kennedy
offered sweetners to leave by certain date, found new job then tried claim UD held tat had been invoted to resign not dismissed
161
constructive unfair dismissal
secion 95 ERA
162
western excavating v sharp
took time off to play in cards tournament and was dismissed, this was retracted and given 5 days off without pay. asked for an advance of his holiday pay then a loan. went to eat said only option was to resign court of appeat disagreed with tribunal saying the conduct had not been outside the reand of acceptable conduct
163
lord denning in western excavating v sharp
conduct of employer must have breached contractual terms. this case set test as contractual test
such as a breach of implied trust and confidence
164
courtaulds northern sinning v sipson
transferred becasue he ahd quit trade union. he terminated contrcat. held no dismissal, c were able to move him within a reasonable distance i.e. united bank v aktar was unreasoanble.
165
isle of wight tourist board v coombs
woman described as an intolerable bitch
| this was con UD comment destroyed trust and confidence
166
section 95
constuctive unfair dissmissal
167
hilton international hotels v properpap
severly reprimanded in front of collegue as she had not asked for permission for dental appointment
was con ud as the person didnt have authoirty to reprimand her or to dismiss her thus there was no dismissal
168
do they need to leave immediatl
although lord denning in western said conduct needed to be sufficiently serious, in walton and morse v dorrington where she was expected to work in a smoke filled envoronment despite asking not to (implied term to make area safe/health of employee
was entitled to wokr out her notice while finding another job
169
jones v siri and sons
was a typistdespiute finding a new job held had been constuctibly dismissed, she resigned due to continual breached by unilaterall changing pay, working hours ect.
170
test
apply the cotnractual test isle of wight tourist board v coombs- bitch
cartaulds- not far enough
171
last straw
| omilaju v waltham froest board
race allegations
to go to the tribunal he had not taken time off or anual leave, refused to pay him his wages in thta time
he said discrimination amounted to dissmissal but then not being paid made it constructive unfair didmissal- yoou can cite succession of incidents that collectivly amount to unacceptable conduct but each one needs to be a serious breach of conduct onus on employee to prove was a dismissal that word not said in anger
172
section 98
for employer to show if was unfair or fair statuotory test test out in section 98
173
some other substantial reason
reason they have used to protect substantial business interests
174
perkin v st georges healthcare nhs trust
director of finance
summarily dissmissed due to conduct and management style
held that he had been unfairly dismissed but that he had 1000% contirbuted to it- then on appeal hedld that the behaviour would be a reason enough to constiture a other substantial reaosn hence no unfair dismessal
175
packing and warehousing co ltd v paterson
lighter of the naval officer that was packing for was found in his pocket, said unless did something about paterson they would loose business
they then dismissed p he claimed unfair dismissal eat said was a legitimate business reason to not lose contract
176
Cobley v foreward technology industrues
involved iin corperate takeover which failed drastically- held as reaosn for dismissal
177
s98 application to constructive unfair dissmissal
burden on employee to prove that fundamental term of contract breach and prove that reason they resigned was direct result of conduct
178
unfair dismissal
burden on employee to show was an actual dismissal- then burden on employer to show was fair dismissal i.e. sosr
179
was the dissmissal fair or unfair
falls under section 98 and is reasonable s.98(4)
180
did the employer act reaonsably
iceland frozen foods v jones- nightshift worker dismissed he failed to lock premesis and decieeved employers- initally ET said was unfair but on appeal found that they had been blinkered by the prescribed lidt os responses
181
polkey v dayton services
procedural fairness
