week 8 - employment law Flashcards
(44 cards)
what is an employment tribunal?
a legal body that resolves disputes between employers + employees.
what do the disputes brought to employment tribunals concern?
how an employment contract has been terminated.
what are the 3 types of dismissal claim in the employment tribunal?
- wrongful
- unfair
- constructive
what is meant by wrongful dismissal?
when an employer breaches the terms of an employment contract when firing an employee.
if the procedures laid out in contract are not adhered to such as any requirements to give warning before dismissal can occur.
breach of contract claim so heard in courts + tribunal.
what are the potential fair reasons for dismissal?
- capability: if they arent capable of doing the job (health, qualifications etc).
- conduct: ordinary + gross misconduct.
- statutory bar: eg work permit is expired.
- breakdown in working relationship.
- redundancy.
- key client threatening to withdraw business of small org if person is not dismissed.
what is ordinary misconduct?
breaches of workplace rules that aren’t sever enough to warrant immediate termination, leads to warnings.
eg lateness, poor work performance.
what is gross misconduct?
serious breaches that undermine the employment relationship, leading to immediate dismissal without notice.
eg theft, fraud, physical violence.
what are some automatically unfair reasons for dismissal?
- family reasons
- health + safety reasons
- issues relating to trade union membership.
- taking part in official industrial action.
- requests for minimum age.
- whistle blowing (making protected disclosures).
- accompanying workers to a disciplinary hearing.
what is unfair dismissal?
an employer terminates an employees contract without a valid, justifiable reason or by using an unfair procedure, violating the employee’s rights.
what is constructive dismissal?
an employee is entitled to resign over the employers behaviour.
although they resigned, if deemed the behaviour of the employer was unreasonable, they can bring proceedings for unfair dismissal.
what are examples of constructive dismissal?
- not receiving contractual remuneration.
- failure to deal with a grievance.
- intolerable working environment.
- poor handling of disciplinary matters.
- false accusations of misconduct.
- change the terms, duties or location per employment contract.
what are the conditions required for constructive dismissal (as set out in western excavations ltd v sharp 1978)?
- the employer must have done something that is in breach of contract.
- the employee decides to resign shortly after the breach.
- the employee resigned purely because of this breach.
can be a series of breaches or one big one.
what is the discrimination law?
- covered in the equality act 2010.
- prohibits treating someone less favourably because of protected characteristics.
- saw creation of equality + human rights commission.
- this can investigate discrimination + take legal action though mast cases are brought by individuals against employers on a case-to-case basis.
what does the discrimination law apply to in employment?
- advertising for jobs
- interviewing
- terms + conditions
- training + promotion in a job
- termination of employment
what are the areas of possible discrimination by EA 2010 (protected characteristics)?
- age
- disability
- marriage + civil partnership
- pregnancy + maternity
- race
- religion or belief (or lack of)
- sex/gender
- sexual orientation
what is prohibited conduct?
actions that are unlawful or against the rules , prohibits certain kinds of conduct that’s discriminatory by law, could be conduct by the employer themselves or could be vicarious.
what are the main types of prohibited conduct?
- direct discrimination
- indirect discrimination
- associative discrimination
- perceptive discrimination
what is direct discrimination?
when person A treats person B less well than they would treat person C because B comes under one of the protected characteristics.
It is not a defence for the alleged discriminator to have the same characteristic however there may be an occupational requirement for a particular characteristic in certain jobs, in which case discrimination is justified (only if it’s crucial to the role).
what is a comparator?
person C is the comparator.
this is used to assess whether discrimination has actually occured.
what is associative discrimination?
somebody has been discriminated against because of someone they are associated with.
what case is an example of discrimination by association?
Coleman v attridge law (2009)
Mrs Coleman had a disabled child and was subject to criticism and insults due to this, this was ruled to be discrimination by association.
what is perceptive discrimination?
person is discriminated against because people perceive they have the protected characteristics, regardless if they have this it would be deemed discrimination.
what is indirect discrimination?
a rule/policy/practice appears to treat everyone the same but in practice is has a negative impact on individuals with a protected characteristic.
what case is an example of indirect discrimination?
Noah v desrosiers t/a wedge
Ms Noah was a muslim woman applying for a hairstylist position, her application was rejected because she wore a headscarf. Claimed both direct + indirect discrim.
Decision: was not ruled to be direct but was ruled indirect as this policy was more likely to impact muslim women than non.
