Employment Law Peter Forster BMA NW Centre March 2008

1. Employment LawPeter ForsterBMA NW CentreMarch 2008

2. Employment Contracts • What is a Contract? • Employment Contract • Terminating a Contract • Varying a Contract

3. What is a contract • Offer • Acceptance • Consideration • Intention to be bound • Terms are certain

4. Contract Terms • Express terms • Implied terms • Incorporated terms

5. IMPLIED TERMS – Employers(1) • 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

6. IMPLIED TERMS – Employers(2) • 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.

7. IMPLIED TERMS - Employees • 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

8. Written Particulars of Employment • Names • Date • Continuous employment • Job title or brief description • Pay, scale, interval • Place(s) of work • Hours of work • Pension • Holiday entitlement PLUS……. • disciplinary rules • grievance

9. Components of Contract. • Written Statement of contract Also. • Job Advertisement • Letter of Appointment • Job Description • Collective agreements • Implied terms

10. Contract Procedures 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

11. What is Dismissal? • Employer terminates the contract • Expiry of a fixed term contract • Redundancy • Constructive dismissal • Refusal to allow employees to return following pregnancy

12. Fair Dismissal Five potentially fair reasons

13. Fair reasons for dismissal 1. Capability. 2. Conduct. 3. Redundancy. 4. Contravention of a statutory enactment. 5. “Some other substantial reason”.

14. EXAMPLES - S.O.S.R. 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

15. Automatic Unfair Dismissal • 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 • 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

16. Constructive Dismissal

17. 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)

18. Constructive Dismissal • 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

19. EXAMPLES Abuse and insults - calculated to destroy the relationship 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 Mutual trust and confidence

20. Constructive Dismissal- ‘Last Straw’ Principle. • “……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.

21. Variation of Contract Agreed changes: • either orally or in writing • through collective bargaining • employee works in accordance withnew arrangements without objecting • term allowing for variation

22. 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,”

23. Fair Procedures • 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.

24. Procedural shortfalls……. “Where employees won their claim, their success related almost without exception to procedural shortcomings on the part of the employer”

25. “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”

26. DISMISSAL FAILINGS • A “warning” not made explicit. • No procedure at all. • Procedures not applied in full. • Procedure contrary to the employers own rules. • Dismissed during an argument. • Insufficient time to rectify shortcomings. • Over hasty use of procedure.

27. 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)

28. Compensation (from 1 Feb 2008) • 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’

29. Statutory disciplinary & grievance procedures • 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.

30. Absenteeism. Poor performance. Time keeping. Disobedience. Dishonesty. Bad language. Smoking. Drink and drugs. Fighting. Harassment. Breakdown of working relationship. Disloyalty. Third party pressure. Conduct outside employment Personal appearance. Most common causes of disciplinary action

31. Absenteeism • Unauthorised absence. • Overstaying leave. • Long term ill health absence. • Persistent short term absence.

32. Persistent short-term illness • 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

33. Long term illness • regular contact • when is return likely • is alternative work available • medical evidence • job can’t be held open indefinitely

34. Personal Appearance • subjective opinion - not enough • the reason for requirement • contract • employees reason for objecting • enforcing standards

35. Poor Performance • skill, aptitude, health or other physical or mental quality • setting standards • length of service • previous performance • extent of poor performance

36. Performance monitoring and standards • careful recruitment and selection • standards explained • accurate/up to date job description • performance appraisal • promotion - failure to make the grade

37. Breakdown of working relationships • is it irredeemable • can the situation be improved (counselling) • have alternatives been considered (transfer)

38. Disloyalty • implied duty of fidelity • breach of confidence • working in competition • soliciting customers

39. Business Reorganisation • 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

40. Getting Advice • BMA – Regional Centres www.bma.org.uk • ACAS – Helpline 08457 474747 www.acas.org.uk • Dept Of Trade and Industry -www.dti.gov.uk

41. ENDS