Distance Learning Module Planner
Employment Law 1
Course Code: LD2028
Module Leader: Margaret Walsh
© University of Wolverhampton 2008
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Contents
How to Use Your Module Planner
Topics Covered by Module
Skills to be Developed and Examined
Examinations
A Brief Guide to Study Skills
Introduction to Study Units
Reading List
Study Unit 1: A Contract of Service - Employee
Study Unit 2: Contract of Employment - Express Terms
Study Unit 3: Contract of Employment - Implied Terms
Study Unit 4: Contract of Employment - Variation of Terms
Study Unit 5: Termination of Contract of Employment and
Common Law Claims Arising Out of the Termination of the
Contract of Employment
Study Unit 6: Employment Tribunal Procedures
Study Unit 7: Unfair Dismissal Claims
Study Unit 8: Redundancy
Learning Project
Practice Question and Suggested Answer
Revision
Taking the Examination
Module Questionnaire
How to Use Your Module Planner
The Module Planner is vital to your studies. It divides the work in
each area into Units, and shows you the minimum number of
hours you should spend on each Unit, at the top right hand corner
of the first page of each Study Unit, in order to understand the law
involved. You should plan on devoting a minimum of 150 hours to
each module you study.
The section headed ‘Essential Reading’ contained in the Reading
List and each Study Unit refers you to the materials with which
you are provided. The materials listed in the Essential Reading
are sufficient to enable you to complete the course very
effectively.
The section headed ‘General Reading’ lists other books which, if
you wish, you can read to give you other approaches to the law.
These books are not provided but you should be able to purchase
them from Hammicks Legal Bookshop, whose address, telephone
number and website details are provided in the General Reading
section of the Reading List. They are not essential for you to be
successful on the course, but they may help to give you a
different viewpoint of the law involved in this module.
The Module Planner guides you through the course. Work
through it logically, and in order, and make sure you understand
one Unit before you move on to the next. At the end of each Unit
you will find a set of Self-Study Questions. Test yourself on these
and make sure you understand them before you move onto the
next Unit.
At the end of the Study Units you will find the Learning Project. A
compulsory question will be set in the examination in Section A of
your paper on all or parts of the material covered by the Learning
Project, and this will count for 50 per cent of your overall grade,
so it is essential that you ensure you study and understand all
aspects covered by it. The Study Units which relate to the
Learning Project have been indicated to guide you through this
material while you study.
The Module Planner is your guide to the topic of English law that
it covers. Have it with you as you study and you will make the
most of this opportunity to obtain the best law degree of which
you are capable.
With this Module Planner you should have the following materials:
Employment Law
Deborah J Lockton, (Palgrave Macmillan)
Cases and Materials on Employment Law (OUP)
Statutes on Employment Law 2007-08 (OUP)
If you do not receive this set of materials, please contact:
Distance Learning Department
Holborn College
Woolwich Road
Charlton
London
SE7 8LN
Tel: +44 (0) 208 317 6000
Fax: +44 (0) 208 317 6003
E-mail: dl@holborncollege.ac.uk
Topics Covered by Module
This module covers the following topics within English
law.
A Contract of Service - Employee
Contract of Employment - Express Terms
Contract of Employment - Implied Terms
Contract of Employment - Variation of Terms
Termination of Contract of Employment and Common Law
Claims Arising Out of the Termination of the Contract of
Employment
Employment Tribunal Procedures
Unfair Dismissal Claims
Redundancy
Skills to be Developed and Examined
To be successful in the end of module examination you need to
show that you understand and can apply the area(s) of law you
have been studying. You must be able to demonstrate this to the
examiners by writing answers which communicate the points you
wish to make accurately and in good English. This is a key part
of demonstrating that you have understood the points of law, the
cases and the Acts of Parliament that you have studied.
Before you start to write your answer, identify the issues that are
relevant to the question. These must be clearly stated in your
short introductory paragraph(s). When referring to case law and
statute law, you then need to explain the relevant legal principles
in the context of the issues you identified in your introductory
paragraph(s). Finally, you need to write a concluding paragraph
which brings your points together. Do not write everything you
know about an area, or write
answers that take the form of a series of notes. Your answer
should be structured in the way described above and be written
in good English.
For further guidance on how you will be graded please consult
your Award Guide which contains an explanation of the criteria
used to grade your work.
It is important that you practice answering questions and in
particular take the opportunity to submit a sample question for
marking and feedback. This question is contained in the Practice
Question section of the Module Planner.
Examinations
This module is assessed by one, two hour, unseen written
examination. Examinations take place in September, January,
and May of each year. The examination is in two parts: Part A is
a compulsory question and counts for 50 per cent of the total
grade, Part B has four questions of which you will be required to
answer two only. Each of the questions in Part B is worth 25 per
cent of the total grade.
The compulsory question in Part A is based on those topics
which make up the Learning Project. You will find details of the
Learning Project and the topic area covered by it at the end of
the Study Units in this Module Planner. You should read this
section carefully to identify those areas of the module covered by
the Learning Project.
You will, therefore, know in advance of the examination that
there will be a substantial question on the topics covered by the
Learning Project. When you write the examination you should
make sure that you devote 50 per cent of the time to the
question in Part A. Your answer to this question should normally
be about twice as long as your answer to the two questions in
Part B.
The purpose of the Learning Project is to allow you to study a
significant part of the syllabus in depth in the sure knowledge
that you will be examined on it. In this way, hard-working
students who have studied their materials thoroughly will be able
to write an in-depth answer and have full credit for the work they
have done reflected in the grade awarded.
There is no assessed coursework for this module. The total
grade for the module is based upon the unseen written
examination. Although you should make sure that you cover the
whole syllabus, it is particularly important that you study those
syllabus topics which are covered by the Learning Project
thoroughly so that you can write a complete answer to the
compulsory question in Part A and take advantage of the fact
that this question is worth 50 per cent of the grade.
The examination is a two-hour examination with an additional 15
minutes reading time. It is an unseen examination. As stated
above, you will know what topics will be covered by the
compulsory question in Part A of the
examination, provided you have studied the details of the
Learning Project at page 44 of this Planner.
A Brief Guide to Study Skills
As a distance learning student you will undoubtedly have other
demands on your time. It is, therefore, important that you use
your time effectively. The following tips are intended to help you
do so.
Time Management
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Be realistic.
Work out what time you have available for study; take out
time for sleeping, eating, recreation, etc.
Try to plan ahead – do not leave everything to the last
minute.
Prioritise – do not do the easiest task first, but the one that
really needs to be done first.
Set objectives which are reasonable, and make sure that
they are somewhere you see them.
Break large tasks into manageable sub-tasks and set
target dates against each sub-task.
Keep a wall planner chart.
Try doing the most difficult things when you feel at your
best.
Remember the unexpected always happens, so be
flexible – don’t get angry when plans have to change.
Effective Reading
Reading
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Read with purpose (what questions have to be
answered?).
Read selectively – scan and skim – only read in detail
what you need to.
Mentally recite what you have just read.
Make notes at appropriate points – bullet points, do not
rewrite the whole book.
Review
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Did I answer the questions I wanted to?
Do I understand and remember what I read?
Studying
Where?
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Choose somewhere that is conducive to study. You need:
a large table or desk; a suitable chair; a bookcase;
adequate, suitable lighting; adequate ventilation;
reasonable temperature – too cold,
you can’t concentrate – too warm, you will go to sleep.
Banish distractions – magazines, radio, telephone, TV.
Decide where you study best, and try to keep to it.
When?
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When you are alert.
Not when you are too tired.
When it is the best time of day for you – some people
work better at night, others early in the morning.
How?
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Try studying for 50 minutes, break for 10 minutes, etc.
Have all you need available – pens, pencils, dictionary,
PC, etc.
Avoid too much physical relaxation or you will go to sleep!
Actively study – make notes, etc. It is difficult to just read
for too
long; it makes you sleepy and you lose concentration.
Remember to have breaks and do have time for
relaxation.
Set yourself targets, and give yourself rewards!
Practice Questions
At the end of each unit you will find Sample Questions, and at
the end of the Planner is a Practice Question and Suggested
Answer. strongly advised to submit at least one answer to either
a Sample Question or the Practice Question for marking. Unless
you do so you will not gain any insight into your strengths and
weaknesses.
Introduction to Study Units
The Study Units deal with the individual topics covered by the
module. The module is broken down into Study Units to enable
you to look at each area of law in digestible parts. You must work
through each Study Unit in order, ensuring that you understand
the material covered by each Unit before progressing on to the
next one.
Each Study Unit is broken down into four major sections.
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Reading List
This indicates what reading you must do (Essential Reading) in
order to cover all of the material set in the Unit. All material listed
in the Essential Reading is provided as part of your study
materials. You can, if you wish, further your knowledge and
understanding by completing the General Reading in each Unit.
These materials are not essential for you to complete the course,
but you may find them useful in your study. Such materials are
not supplied, and you are responsible for obtaining copies of the
titles listed in the General Reading. Details are given in the
Reading List of suppliers.
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Case Law and Statutes
This section directs you to those cases and statutes that you will
need to read and understand in order to complete the Unit.
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Self-Study Questions
These are questions designed to set the parameters of the Study
Unit and to test your application of the basic principles.
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Sample Questions
These may be essay or problem questions, often taken from past
examination papers. You should attempt your own answers to all
of these questions.
Reading List
These are the titles that you will use throughout the course. They are
referred to in the reading section of each Study Unit, to guide you in your
learning.
Essential Reading
All materials listed here must be read in order for you to understand the
module. These books are supplied as part of your study materials.
Employment Law
Deborah J Lockton, (Palgrave Macmillan)
Cases and Materials on Employment Law (OUP)
Statutes on Employment Law 2007-08 (OUP)
General Reading
These materials are not supplied, and are not essential to pass the module.
You may, however, wish to refer to them to deepen your understanding of
the topics covered by the course. You are responsible for obtaining your
own copies of these titles. If you choose to do so, you should be able to
purchase them by contacting Hammicks Legal Bookshops at 192 Fleet
Street, London EC4A 2NJ; tel: +44 (0)20-7405- 5711 or you can order
online at www.hammickslegal.co.uk.
Selwyn’s Law of Employment
Selwyn (latest edition) Butterworths
Smith and Wood’s Industrial Law
Smith and Thomas (latest edition) Butterworths
Employment Law
Pitt (latest edition) Sweet & Maxwell
In addition, in each Study Unit you will find a list of cases which should be
consulted. Summaries of these can be found in the Casebook. If you have
access to the Internet you may wish to take advantage of the legal materials
available via this source. See your Award Guide for details. For those
students who have never studied the law, certain terminology used may be
difficult to understand at first. As you progress through the course, you will
learn a range of new words and phrases that are frequently used in the
study of law. If you encounter any difficulties with the terminology used,
however, you will find it useful to refer to a legal dictionary, which will explain
the meaning of legal words and phrases in plain English. Mozley and
Whitley’s Law Dictionary (12th edition 2001) by Butterworths is very helpful,
and can be purchased through Hammicks Legal Bookshops.
Study Unit 1 Suggested minimum study hours: 15
Topic
A Contract of Service – Employee
Introduction
An employee works under a contract of service, whereas an independent
contractor works under a contract for services. The distinction is important
when dealing with employees’ rights. This
Unit looks at the tests developed by the courts to determine who is an
employee.
Objectives
a To understand the difference between a contract of service (for
employees) and a contract for services (for independent contractors).
b To analyse the various tests used to determine a worker’s status.
Essential Reading
These titles have been supplied as part of your study materials.
Employment Law Textbook – Chapters 2 and 3
Cases and Materials on Employment Law – (See listed cases)
General Reading
These titles have not been supplied and are not essential reading, but you
may wish to refer to them to further your understanding.
Selwyn’s Law of Employment, Selwyn – Relevant Chapter(s)
Smith and Wood’s Industrial Law, Smith and Thomas – Relevant
Chapter(s)
Employment Law, Pitt – Relevant Chapter(s)
Bowers on Employment Law, Bowers – Relevant Chapter(s)
Employment Law, Desmond and Antill – Relevant Chapter(s)
Case law and statute
WORKER’S STATUS – EMPLOYEE OR INDEPENDENT CONTRACTOR?
Carmichael and Leese v National Power plc [1998] IRLR 301 (CA)
Express and Echo Publications Ltd v Tanton [1999] IRLR 367
Lane v Shire Roofing Co Ltd [1995] IRLR 493 (CA)
McMeechan v Secretary of State for Employment [1997] IRLR 353
Market Investigations Ltd v Ministry of Social Security [1969] 2 QB 173
Massey v Crown Life Insurance [1978] ICR 590 (CA)
Nethermere (St Neots) Ltd v Taverna and Gardiner [1984] IRLR 240 (CA)
O’Kelly and Others v Trusthouse Forte plc [1983] IRLR 369
Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National
Insurance [1968] 2 QB 497
Stevenson & Others v MacDonald and Evans [1952] 1 TLR 101
Young and Woods Ltd v West [1980] IRLR 201 (CA)
Employment Rights Act 1996: s230
Self-Study Questions
1 What is the main reason why it is important to distinguish whether a
worker is an employee or self-employed?
2 What are three of the prima facie signs that someone is an employee
rather than an independent contractor?
3 What are four of the tests which have evolved to assist in determining if a
worker is an employee or self-employed?
4 What approach was adopted by the Court of Appeal in Carmichael v
National Power plc (1998)?
5 Is the question of whether a worker is an employee or self-employed a
question of law or a question of fact? What difference does it make?
Sample Questions
1 ‘The tests developed by the courts to determine who is and who is not an
employee come down to one simple test, that is, is there control over the
worker?’
Discuss this statement in light of the tests developed by the courts to
determine a worker’s status.
(Wolverhampton LLB by Distance Learning, September 2001, Question 2.)
2 Ken works for Stoneway Ltd. He provides his own tools and works under a
supervisor. Ken works approximately nine months of the year for Stoneway
Ltd. When Stoneway Ltd do not require his services, Ken is free to work for
other companies.
Advise Ken on whether he works under a contract of services or a contract
for services.
(Wolverhampton LLB by Distance Learning Question.)
Study Unit 2 Suggested minimum study hours: 15
Topic
Contract of Employment – Express Terms
Introduction
A contract of employment contains a number of express terms. These terms
are found in the individual contract of employment, but the contract may be
subject to collective agreements. This Unit looks at the sources of the
contract and the significance of the statement of particulars issued under s1
Employment Rights Act 1996.
Objectives
a To explain how a contract of employment is formed.
b To indicate the sources of the terms of the contract of employment.
c To consider the relationship between collective agreements and individual
contracts of employment.
d To explain the contractual significance of works rules.
e To examine the employer’s obligation to inform workers of the main terms
and conditions of their employment.
f To consider the relationship between the contract of employment and the
s1 statement.
g To examine the duties owed by employees after the termination of their
employment, particularly regarding confidentiality and noncompetition.
Essential Reading
These titles have been supplied as part of your study materials.
Employment Law Textbook – Chapter 3, section 3.3
Cases and Materials on Employment Law – (See listed cases)
General Reading
These titles have not been supplied and are not essential reading, but you
may wish to refer to them to further your understanding.
Selwyn’s Law of Employment, Selwyn – Relevant Chapter(s)
Smith and Wood’s Industrial Law, Smith and Thomas – Relevant
Chapter(s)
Bowers on Employment Law, Bowers – Relevant Chapter(s)
Employment Law, Pitt – Relevant Chapter(s)
Case law and materials
SOURCES OF TERMS – COLLECTIVE AGREEMENTS
Cadoux v Central Regional Council [1986] IRLR 131
Hamilton v Futura Floors Ltd [1990] IRLR 490
Marley v Forward Trust Ltd [1986] IRLR 369 (CA)
National Coal Board v Galley [1958] 1 WLR 16
Robertson v British Gas Corporation [1983] ICR 351
Singh v British Steel Corporation [1974] IRLR 131
SIGNIFICANCE OF EMPLOYERS’ RULES BOOKS
Secretary of State for Employment v Associated Society of Locomotive
Engineers and Firemen (ASLEF) (No 2) [1972] 2 QB 455
London Borough of Wandsworth v D'Silva and another [1998] IRLR 193, CA
EXPRESS TERMS– RESTRICTIVE COVENANTS REGARDING
CONFIDENTIALITY
Faccenda Chicken Ltd v Fowler [1986] IRLR 69 (CA)
Lancashire Fires Ltd v SA Lyons & Co Ltd and Others [1997] IRLR 113 (CA)
Littlewoods Organisation Ltd v Harris [1997] 1 WLR 1472 (CA)
Marshall v NM Financial Management Ltd [1997] IRLR 449 (CA)
Office Angels Ltd v Rainer-Thomas and O’Connor [1991] IRLR 214
Robb v Green [1895] 2 QB 315 (CA)
EXPRESS TERMS – ENFORCEABILITY OF POST-TERMINATION
COVENANTS GENERALLY
Morris Angel Ltd v Hollande [1993] IRLR 169 (CA)
SIGNIFICANCE OF THE S1 STATEMENT OF IMPORTANT TERMS AND
CONDITIONS
Gascol Conversions Ltd v Mercer [1974] ICR 420
Systems Floors (UK) Ltd v Daniel [1982] ICR 54
Employment Rights Act 1996: ss1(1) and 230(1)
Trade Union and Labour Relations (Consolidation) Act 1992: ss179 and 295
Transfer of Undertakings (Protection of Employees) Regulations 1981: reg 7
Self-Study Questions
SOURCES OF TERMS – COLLECTIVE AGREEMENTS
1 What different approaches do the courts take in deciding whether a term
from a collective agreement is part of an individual employee’scontract?
RESTRICTIVE COVENANTS
2 Why are restraint clauses in all types of contracts generally held to be
prima facie void?
3 What are the considerations a court or Tribunal will have in mind in
deciding whether to enforce a post-termination covenant?
4 Why is it always important to consider whether an employee has been
‘wrongfully dismissed’ in deciding the enforceability of posttermination
covenants?
SECTION 1 STATEMENTS
5 What remedy does an employee have for failure of the employer to furnish
them with a s1 statement? What limit was imposed on this remedy by the
decision of the Court of Appeal in Eagland v BT plc?
Sample Questions
1 Singh has been offered employment by Freedan Ltd. The contract would
be for a fixed period of three years with either side being able to give three
weeks’ notice of termination before the expiry of the three years. The
director at the interview stated that although Singh will be based in London,
he can be expected to work anywhere in the UK as and when required by
the company. There is no clause to this effect in the written contract.
Singh is worried about his rights under this contract. He wants to
know (a) if he will have any claim against Freedan Ltd if his contract is not
renewed at the end of the three years, and (b) whether he can refuse to
work outside London.
Advise Singh.
(Wolverhampton LLB by Distance Learning, May 2001, Question 5.)
2 Malik works as a driver for Dano Ltd. He is not a member of the trade
union but he has heard that the union is about to negotiate a collective
agreement with an employers’ association of which Dano Ltd is a member.
The collective agreement will give the drivers an increase in pay
but longer hours of work.
Advise Malik on whether the collective agreement will be binding
on him. Would your answer differ if Malik were a member of the trade
union?
(Wolverhampton LLB by Distance Learning, May 2001,Question 2.)
Study Unit 3 Suggested minimum study hours: 10
Topic
Contract of Employment – Implied Terms
Introduction
It is sometimes necessary for the courts to imply terms into the contract of
employment to take account of the personal nature of the
employer/employee relationship. This Unit examines the approaches the
courts take in implying terms into the contract of employment.
Objectives
a To examine the nature and extent of the ‘common law’ and ‘statutory’
terms and whether they represent a closed list.
b To outline the extent to which an employer is under an obligation to:
i pay wages (including sick pay);
ii provide work in the absence of any express terms on the matters;
iii sustain a relationship of trust and co-operation with the employee;
iv to preserve the health and safety of employees.
c To outline the extent to which an employee is under an obligation to:
i obey the lawful orders of the employer;
ii adapt to changing circumstances in the nature of their work;
iii treat themselves as having a duty of fidelity to the employer.
Essential Reading
These titles have been supplied as part of your study materials.
Employment Law Textbook – Chapter 3, section 3.4
Cases and Materials on Employment Law – (See listed cases)
General Reading
These titles have not been supplied and are not essential reading, but
you may wish to refer to them to further your understanding.
Selwyn’s Law of Employment, Selwyn – Relevant Chapter(s)
Smith and Wood’s Industrial Law, Smith and Thomas – Relevant
Chapter(s)
Employment Law, Pitt – Relevant Chapter(s)
Bowers on Employment Law, Bowers – Relevant Chapter(s)
Employment Law, Desmond and Antill – Relevant Chapter(s)
Case law and statutes
IMPLICATION OF TERMS GENERALLY
Ali and Others v Christian Salvesen Food Services Ltd [1995] IRLR 624
Courtaulds Northern Spinning Ltd v Sibson [1988] IRLR 276 (CA)
Mears v Safecar Security Ltd [1982] 2 All ER 865 (CA)
Scally and Others v Southern Health & Social Services Board [1991] IRLR
522 (HL)
Stevenson v Teesside Bridge and Engineering Ltd [1971] 1 All ER 296
IMPLIED TERMS AND EXPRESS TERMS IN CONFLICT
Johnstone v Bloomsbury Health Authority [1991] IRLR 118
DUTY TO PROVIDE WORK
Collier v Sunday Referee Publishing Co Ltd [1940] 2 KB 647
Langston v Amalgamated Union of Engineering Workers (No 1) [1974] 1
All ER 980
Turner v Sawdon & Co [1901] 2 KB 653 (CA)
DUTY TO PROVIDE PAY
Miles v Wakefield Metropolitan District Council [1987] IRLR 193 (HL)
Way v Latilla [1937] 3 All ER 759 (HL)
DUTY TO PRESERVE THE EMPLOYEE’S HEALTH AND SAFETY
Dryden v Greater Glasgow Health Board [1992] IRLR 469 (EAT)
Sutherland v Hatton [2002] IRLR 263 (CA)
Walker v Northumberland County Council [1995] IRLR 35 (QBD)
Wilsons and Clyde Coal Co Ltd v English [1938] AC 57
DUTY TO PROVIDE INFORMATION TO THE EMPLOYEE
Scally And Others V Southern Health And Social Services Board [1991]
IRLR 522, HL.
DUTY TO COOPERATE WITH THE EMPLOYEE
United Bank Ltd. V Akhtar [1989] IRLR 507 (EAT)
DUTY TO TAKE REASONABLE CARE IN PERFORMING DUTIES
Lister v Romford Ice and Cold Storeage Co Ltd [1957] AC 555 (HL)
DUTY TO ADAPT
Cresswell v Board of Inland Revenue [1984] ICR 508
MUTUAL DUTY TO SUSTAIN A RELATIONSHIP OF TRUST AND
CONFIDENCE
Bliss v South East Thames Regional Health Authority [1987] ICR 700
Lewis v Motorworld Garages Ltd [1986] IRLR 465
Malik v Bank of Credit and Commerce International SA (BCCI) [1997]
IRLR 462 (HL)
Wood v WM Car Services (Peterborough) Ltd [1982] IRLR 413 (CA)
EMPLOYEE’S DUTY OF FIDELITY
Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] 1 Ch 169
Sybron Corporation v Rochem [1983] IRLR 253
Employment Rights Act 1996: s197
Health and Safety at Work Act 1974
Patents Act 1977: s39
Self-Study Questions
1 What is meant by saying that a term needs to be implied into a contract
because it is one of the ‘legal incidents’ of employment? How does this
differ from saying that the term should be implied because it is ‘necessary
to give the contract business efficacy’?
2 What situation where an employee is allowed to contract out of his/her
statutory employment rights is provided for in s197 ERA 1996?
3 Explain the Court of Appeal’s decision in Johnstone v Bloomsbury
AHA. What issue was the focus of the decision?
4 Why did the Court of Appeal decide to uphold the lower court’s decision
to issue an injunction to prevent employees of Hivac Ltd from working for
Park Royal Scientific Instruments?
5 Who is entitled to the benefit from inventions employees make while at
work? What statutory provision is made for this? What if they invent
something which is related to their job but which they work on only in their
own time? Is the employee entitled to the benefit of their invention in that
case?
6 What standard of care must an employer observe in fulfilling his implied
duty to protect the health and safety of his employees? What is are the
practical tests of whether the employer has maintained the appropriate
standard of care as set out in Wilson and Clyde Coal Co v English?
7 Why is Walker v Northumberland County Council regarded as a
landmark case in relation to the employer’s duty to protect the health and
safety of employees?
Sample Questions
1 ‘A contract of employment is nothing more than a simple contract. The
basic contractual rules apply to the employment relationship.’
Critically discuss the above statement.
(Wolverhampton LLB by Distance Learning, January 2001, Question 2.)
2 If all the terms of a contract of employment were written down, it would
make a very hefty document indeed. Examine the significance of, and
illustrate with relevant cases, four of the following implied terms which
normally will be found in a contract of employment:
a the employee must obey the employer’s rules;
b the employer must maintain the trust and confidence of the employee;
c the employee owes a duty of fidelity to the employer;
d the employer must take reasonable steps to protect the health and
safety of the employee;
e the employer must inform the employee of the detailed requirements
relating to access to conditional benefits arising our of his/her
employment.
(Wolverhampton LLB by Distance Learning Question.)
Study Unit 4 Suggested minimum study hours: 10
Topic
Contract of Employment – Variation of Terms
This Unit covers material contained in the Learning Project.
Introduction
During the employment relationship it may be necessary for the terms of
the contract of employment to be varied. This Unit looks at the effect of
such a variation on the contract of employment and the circumstances in
which an employee may bring a claim against the employer for
constructive dismissal.
Objectives
a To examine how a variation of the contract of employment can
beaccomplished and what effect it may have.
b To identify constructive dismissals.
Essential Reading
These titles have been supplied as part of your study materials.
Employment Law Textbook – Chapter 3, section 3.7
Cases and Materials on Employment Law – (See listed cases)
General Reading
These titles have not been supplied and are not essential reading, but
you may wish to refer to them to further your understanding.
Selwyn’s Law of Employment, Selwyn – Relevant Chapter(s)
Smith and Wood’s Industrial Law, Smith and Thomas – Relevant
Chapter(s)
Employment Law, Pitt – Relevant Chapter(s)
Bowers on Employment Law, Bowers – Relevant Chapter(s)
Employment Law, Desmond and Antill – Relevant Chapter(s)
Case law and statute
VARIATION OF TERMS GENERALLY
Jones v Associated Tunnelling Co Ltd [1981] IRLR 477
Marriott v Oxford & District Co-operative Society [1970] 1 QB 186
CONSTRUCTIVE DISMISSAL – REPUDIATION BY THE EMPLOYER
Lewis v Motorworld Garages Ltd [1985] IRLR 465 (CA)
Tanner v Kean [1978] IRLR 160
Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 (CA)
Woods v WM Car Services (Peterborough) Ltd [1981] ICR 166
EXAMPLES OF BREACHES WHICH MIGHT FOUND A CLAIM FOR
CONSTRUCTIVE DISMISSAL
Bracebridge Engineering Ltd v Derby [1990] IRLR 3
Palmanor Ltd v Cedron [1978] IRLR 303
Rigby v Ferodo Ltd [1987] IRLR 516 (HL)
United Bank Ltd v Akhtar [1989] IRLR 507 (EAT)
LEAVING WITHIN A REASONABLE TIME
Aparau v Iceland Frozen Foods plc [1996] IRLR 119
Jones v Associated Tunnelling Co Ltd [1981] IRLR 477
CONSTRUCTIVE DISMISSAL AND UNFAIR DISMISSAL
Savoia v Chiltern Herb Farms Ltd. [1982] IRLR 166 (CA)
Employment Rights Act 1996: ss95(1)(c)
Self-Study Questions
1 What redress is available to an employee whose contract is varied
without their consent?
2 Does every variation of a contract of employment without the employer
seeking the agreement of the employee to the proposed variation amount
to a breach of contract?
3 What is the statutory definition of constructive dismissal? What is the
difference between constructive dismissal and unfair dismissal?
4 Why did Lord Denning, when he wrote his decision in Western
Excavating v Sharp, feel compelled to re-assert the primacy of the law of
contracts in determining whether or not there had been a constructive
dismissal?
5 What is the importance of the decision in United Bank Ltd v Akhtar in
relation to the exercise of contractual powers by an employer?
6 What is the two-fold importance of the decisions in Woods v WM Car
Services and Lewis v Motorworld Garages Ltd?
Sample Questions
1 Guy worked as a marketing executive for ‘Marketus’. A modernisation
had resulted in all marketing executives being moved to an open plan
office. In addition they had been told that they needed to become
proficient in using word processors and computers to enable them to do
this work themselves in an emergency. Guy was unhappy about both of
these changes.
Last Monday, when Guy was unable to print a document, the
Managing Director screamed, ‘If you had a brain, you’d be dangerous.’
Guy stormed out. He now seeks your advice about whether he should
have walked out and wants to know if he can take a job with ‘Promos’, a
marketing company based in the same town as ‘Marketus’. His contract
provides that he must not, for a period of 18 months, be engaged in the
business of marketing anywhere in the county of Foxhamptonshire, where
both companies are based. The clause is to be valid however the contract
terminates.
Advise him.
(Wolverhampton LLB by Distance Learning Question.)
2 Dick is employed by Black and White and Co under the terms of a
contract of employment which does not contain a ‘variation clause’. Dick
has been working for Black and White for only six weeks and has proved
to be incapable of doing his job as a computer programmer. He had no
previous experience of this work as required by the job advertisement but
applied to Black and White notwithstanding and explained his lack of
relevant experience in his application form. He was told at the interview
that his inexperience ‘didn’t matter’ and that ‘he would soon pick up the
skills of a computer programmer’. Norman, the departmental head of the
computer section at Black and White, asked Dick to transfer to the sales
department where he is required to work unsocial hours which are
affecting his family life. Accordingly, he has seen Thomas, Black and
White’s managing director, and asked to be transferred back to his original
job in the computer department. Thomas has told him that Norman had no
right to transfer him out of the computer department in the first place and
that the transfer is invalid. Thomas told Dick that he would take legal
advice before deciding
what action to take in the matter.
Advise Thomas as to the legal issues involved.
(Wolverhampton LLB by Distance Learning Question.)
Study Unit 5 Suggested minimum study hours: 15
Topic
Termination of the Contract of Employment and Common Law Claims
Arising Out of the Termination of the Contract of Employment
This Unit covers material contained in the Learning Project.
Introduction
A contract of employment may be terminated in a number of ways.
Termination may be by mutual agreement. This Unit examines the
various ways in which a contract may be terminated and the
circumstances in which a termination may give rise to a claim for
wrongful dismissal.
Objectives
a To differentiate among the different ways in which a contract of
employment can be brought to an end.
b To examine the statutory definition of dismissal.
c To identify the circumstances in which an employer can terminate a
contract of employment without notice.
d To understand when a claim for wrongful dismissal can be made.
e To be aware of the limitations of the common law remedy of wrongful
dismissal.
f To identify situations in which an injunction might be granted to prevent
or delay the termination of a contract of employment.
Essential Reading
These titles have been supplied as part of your study materials.
Employment Law Textbook – Chapter 4
Cases and Materials on Employment Law – (See listed cases)
General Reading
These titles have not been supplied and are not essential reading, but
you may wish to refer to them to further your understanding.
Selwyn’s Law of Employment, Selwyn – Relevant Chapter(s)
Smith and Wood’s Industrial Law, Smith and Thomas – Relevant
Chapter(s)
Employment Law, Pitt – Relevant Chapter(s)
Bowers on Employment Law, Bowers – Relevant Chapter(s)
Employment Law, Desmond and Antill – Relevant Chapter(s)
Case law and statute
REPUDIATION
London Transport Executive v Clarke [1981] ICR 355 (CA)
Thomas Marshall (Exports) Limited v Guinle and Others [1979] Ch 227
GROSS MISCONDUCT
Pepper v Webb [1969] 2 All ER 216 (CA)
Sinclair v Neighbour [1967] 2 QB 279
Wilson v Racher [1974] IRLR 114 (CA)
RESISTING TERMINATION
Dietman v London Borough of Brent [1988] IRLR 299 (CA)
Hill v C A Parsons & Co Ltd [1972] 1 Ch 305 (CA)
Irani v Southampton and South-West Hampshire Health Authority [1985]
IRLR 203
Rigby v Ferodo Ltd [1987] IRLR 516 (HL)
TERMINATION OF FIXED-TERM EMPLOYMENT
Dixon v BBC [1979] ICR 281
Wiltshire County Council v NATFHE and Guy [1980] IRLR 198 (CA)
NON-DISMISSAL TERMINATIONS
Birch and Humber v The University of Liverpool [1985] IRLR 165 (CA)
British Leyland v Ashraf [1978] ICR 979
Egg Stores v Leibovici [1977] ICR 260
Igbo v Johnson Matthey Chemicals Limited [1986] IRLR 215 (CA)
Shepherd & Co Limited v Jerrom [1986] IRLR 358 (CA)
Employment Rights Act 1996: ss95(1) and (2), 97(1), 97(2), 136, 197 and
203
Self-Study Questions
1 Why is it so important to establish how the contract of employment was
terminated?
2 What is the limit of application of the provision in s97(2) ERA 1996
which allows the ‘effective date of termination’ to be extended?
3 In what situation will an employee who is dismissed summarily be
entitled to pay-in-lieu of notice? How will the amount they are due be
determined?
4 In Hill v C A Parsons the court was prepared to grant an injunction to
prevent the termination of an employee’s contract. Does this case mean
that the old rule that no specific performance of contracts of employment
will be ordered has been swept away?
Sample Questions
1 Irene has worked for her local council for 12 years. During the last two
years she has suffered a number of illnesses and has had quite a lot of
time off work. She has now been advised by her doctors to spend more
time recuperating and she has decided to visit her home country for one
month. When Irene told her employer of her intention, she was asked to
sign a form stating that if she does not return to work at the end of the
month, she will be deemed to have resigned. The form also contained a
clause to the effect that if she has any more time off sick during the
coming year, the contract will be deemed to be frustrated.
Advise Irene on the above situation.
(Wolverhampton LLB by Distance Learning, September 2001, Question
5.)
2 Kylie and Jason were employed by Grundy Productions Ltd. After
having played bit roles in several Grundy productions during the previous
five years, Kylie now had a leading role in the company’s smash-hit soap
opera ‘West Enders’. Jason had been the company’s chief electrician for
12 years. Following the loss of several sponsors due to a decline in the
programme’s popularity the company, hoping the changes would
reawaken interest in the show, introduced several new characters and
killed off some of the old ones. Unfortunately Kylie’s character was one of
those dropped and she was told that henceforward she would be working
as a tea-girl on the set. Her salary would remain the same for four
months but after that she would only be paid a tea-girl rate. On hearing
about the way Kylie had been treated, Jason was so angry that he
secretly wired the chair used by the show’s producer when he came on
set so that it gave him a very painful shock when he sat in it. When
accused of having electrified the chair, Jason denied any involvement.
Nevertheless, he was dismissed on the spot. He was paid the two weeks
salary he had coming; and then he was escorted out of the premises and
forbidden to enter onto any Grundy property for the next year. When
Kylie heard what had happened to Jason she walked up to the producer,
slapped him and with the words, ‘I’m not staying where people are
treated like this’ stormed out of the Grundy premises. Grundy’s president
has sent all of Kylie’s things to her house with a note saying, ‘Since
you’re quitting you’d better have these back’; and he has ordered the
company’s security guards not to let Kylie back onto the company’s
premises. Kylie and Jason, both rather tearfully regretting their rash
behaviour of the day before, have come to you for advice about any
action they can take against Grundy Productions.
(Wolverhampton LLB by Distance Learning Question.)
Study Unit 6 Suggested minimum study hours: 5
Topic
Employment Tribunal Procedures
Introduction
This Unit examines the role of the employment tribunal and considers
when an appeal may be made to the Employment Appeal Tribunal.
Objectives
a To understand the role played by employment tribunals.
b To understand the role played by ACAS.
c To know the main jurisdictions of employment tribunals.
d To be aware of the procedural steps involved in bringing a claim before
an employment tribunal.
e To be aware of the powers of an employment tribunal to hold
rehearing reviews or interlocutory hearings.
f To be aware of the way hearings are conducted in employment
tribunals.
g To understand the role of the Employment Appeal Tribunal.
Essential Reading
These titles have been supplied as part of your study materials.
Employment Law Textbook – Chapter 13
Cases and Materials on Employment Law – (See listed cases)
General Reading
These titles have not been supplied and are not essential reading, but
you may wish to refer to them to further your understanding.
Selwyn’s Law of Employment, Selwyn – Relevant Chapter(s)
Smith and Wood’s Industrial Law, Smith and Thomas – Relevant
Chapter(s)
Employment Law, Pitt – Relevant Chapter(s)
Bowers on Employment Law, Bowers – Relevant Chapter(s)
Employment Law, Desmond and Antill – Relevant Chapter(s)
Case law and statutes
Burns International Security Services (UK) Ltd v Butt [1983] ICR 547
Byrne and Others v Financial Times Ltd [1991] IRLR 417
Clapson v British Airways [2001] IRLR 184
Delaney v Staples (t/a De Montfort Recruitment) [1992] IRLR 191 (HL)
Sogbetun v Hackney London Borough Council [1998] ICR 1264
Equal Pay Act 1972: s2
Sex Discrimination Act 1975: s63
Race Relations Act 1976: s54
Transfer of Undertakings (Protection of Employment) Regulations1981:
reg 10
Trade Union and Labour Relations (Consolidation) Act 1992
Employment Rights Act 1996
Employment Tribunals Act 1996
Industrial Tribunals Act 1996
Employment Rights (Dispute Resolution) Act 1998
Employment Tribunals (Constitution and Rules of Procedure)
Regulations 2004
Employment Act 2002 (Dispute Resolution) Regulations 2004
Self-Study Questions
1 When will a tribunal award costs? Why do you think that tribunals
award costs only exceptionally?
2 When were the tribunals given the power to hear cases regarding
breach of the terms of employment contracts? In view of the decision of
the House of Lords in Delaney v Staples, why was this an important
widening of their jurisdiction?
3 What is the basis on which a tribunal will review its decision?
4 On what basis can an appeal be made to the Employment Appeal
Tribunal (EAT)?
5 On what basis will the EAT allow an appeal against the factual findings
of a tribunal?
Sample Questions
1 ‘Employment tribunals do not provide an adequate means of dealing
with employment issues.’
Critically discuss this statement.
(Wolverhampton LLB by Distance Learning Question.)
2 Sarah believes that she was unfairly dismissed and wishes to bring a
claim against her employer.
Advise Sarah on the steps for bringing a claim against the mployer.
(Wolverhampton LLB by Distance Learning Question.)
Study Unit 7 Suggested minimum study hours: 15
Topic
Unfair Dismissal Claims
This Unit covers material contained in the Learning Project.
Introduction
An employee has a statutory right not to be unfairly dismissed. The
legislation contains potentially fair reasons for dismissal as well as
automatically unfair reasons. This Unit examines the statutory reasons for
dismissal, together with the employment tribunal’s burden of determining
whether a dismissal is fair or unfair.
Objectives
a To know which employees are excluded from bringing a claim of unfair
dismissal.
b To know what the time limit for submitting a claim is; and when that time
limit will be relaxed.
c To examine the unfair reasons for dismissing employees.
d To consider the fair reasons for dismissing an employee.
e To understand what is meant by, and the significance of, the term ‘the
band of reasonable responses’.
f To examine when a lack of procedure by an employer will result in a
finding of unfair dismissal.
g To be able to indicate how the remedy afforded to a successful applicant
will be determined.
h To be able to indicate in what circumstances a tribunal may choose to
limit or reduce the basic or compensatory award made to a successful
applicant.
Essential Reading
These titles have been supplied as part of your study materials.
Employment Law Textbook – Chapters 4 and 13
Cases and Materials on Employment Law – (See listed cases)
General Reading
These titles have not been supplied and are not essential reading, but
you may wish to refer to them to further your understanding.
Selwyn’s Law of Employment, Selwyn – Relevant Chapter(s)
Smith and Wood’s Industrial Law, Smith and Thomas – Relevant
Chapter(s)
Employment Law, Pitt – Relevant Chapter(s)
Bowers on Employment Law, Bowers – Relevant Chapter(s)
Employment Law, Desmond and Antill – Relevant Chapter(s)
Case law and materials
EXCLUDED CATEGORIES
R v Secretary of State for Employment, ex parte Seymour-Smith and
Perez [1999] IRLR 253
Waite v Government Communications Headquarters [1983] ICR 653 (HL)
AUTOMATICALLY UNFAIR REASONS FOR DISMISSAL
Brown v Stockton-On-Tees Borough Council [1988] IRLR 263 (HL)
Webb v EMO Air Cargo (UK) Ltd. [1995] IRLR 645 (HL)
CAPABILITY
Alidair Ltd v Taylor [1978] IRLR 82 (CA)
Davison v Kent Meters [1975] IRLR 145
QUALIFICATIONS
Blackman v Post Office [1974] ICR 151
CONDUCT
British Home Stores v Burchell [1978] IRLR 379 (EAT)
Frames Snooker Centre v Boyce [1992] IRLR 472 (EAT)
Monie v Coral Racing Ltd [1980] IRLR 69 (CA)
Moore v C & A Modes [1981] IRLR 71
REDUNDANCY
British Aerospace plc v Green [1995] ICR 1006 (CA)
High Table v Horst [1997] IRLR 513 (CA)
Vaux Breweries v Ward [1968] 3 ITR 385
Williams v Compair Maxim [1982] IRLR 83 (EAT)
SOME OTHER SUBSTANTIAL REASON
Dobie v Burns International Security Services [1984] IRLR 329
Hollister v National Union of Farmers [1979] IRLR 238 (CA)
RS Components v Irwin [1974] 1 All ER 41
COMPENSATION
Norton Tool Co Ltd v Tewson [1972] IRLR 86
Rao v Civil Aviation Authority [1994] IRLR 240 (CA)
REASONABLENESS OF DISMISSAL AND PROCEDURE
British Home Stores v Burchell [1978] IRLR 379
Devis (W) & Sons Ltd v Atkins [1976] IRLR 16
Iceland Frozen Foods v Jones [1982] IRLR 439 (EAT)
Midland Bank v Madden [2000] IRLR 827
Polkey v A E Dayton Services Ltd [1987] IRLR 503 (HL)
Saunders v Scottish National Camps Association Ltd [1980] IRLR 174
West Midlands Cooperative Society Ltd v Tipton [1986] IRLR 112 (HL)
TIME LIMITS
Dedman v British Building and Engineering Applicances Ltd [1974] ICR 53
Palmer v Southend-on-Sea Borough Council [1984] IRLR 119
ACAS Code and Practice
Employment Rights Act 1996: Part V (ss44–49), Part X (ss94–110) and
s111
Trade Union and Labour Relations (Consolidation) Act 1992: ss237 and
238 (1 & 2)
Transfer of Undertakings (Protection of Employment) Regulations 2006
Employment Act 2002 (Dispute Resolution) Regulations 2004
Self-Study Questions
1 What is the difference, if any, between the British Labour Pump test and
the ‘futility test’ as set out by Lord Bridge in Polkey? How does the
addition of Sec. 98A(2) ERA 1996 affect the Polkey test?
2 How does the decision in West Midlands Coop v Tipton in regard to
taking the decision of internal appeals panels into account in deciding on
the fairness of a dismissal relate to the decision in Devis v Atkins?
3 What is the practical test, set out in cases such as Iceland Foods v
Jones, that tribunals will subject an employer’s behaviour to in deciding if
they acted fairly?
4 How important is it for an employer to accurately label the reason for
which an employee has been dismissed?
5 How far do the cases decided on this point indicate that an employer has
to go in investigating an employee’s medical condition before it will be fair
to dismiss them for incapacity related to their illness?
6 In what circumstances is it inappropriate for a tribunal to say that a
dismissal is unfair because the employer has not adhered to the tests set
out by the EAT in BHS v Burchell?
7 Can an employer fairly dismiss an employee for something amounting to
less than gross misconduct even though this is the first time that the
employee has done that thing? What role can Rule Books and posted
notices play in deciding this question?
8 What difference is there between the requirements to consult unions and
individuals where an employer is dismissing people for redundancy?
Sample Questions
1 Greta worked for Yousour Ltd until last week when she was told to clear
out her desk and leave the premises. She was told that she was being
dismissed because the company believed that she had stolen money from
another employee.
The company has now discovered that Greta had been passing
confidential information to a rival company. Yousour Ltd wants to know if
they can rely on this subsequently discovered reason for dismissing Greta
if she brings a claim against them for unfair dismissal.
Advise Yousour Ltd.
(Wolverhampton LLB by Distance Learning, September 2001, Question 4.)
2 ‘On hearing a claim for unfair dismissal, if an employment tribunal thinks
it would not have dismissed the employee in such circumstances, the
claim for unfair dismissal will succeed.’
Critically discuss the above statement with reference to the employment
tribunal’s role in determining whether a claim for unfair dismissal should
succeed.
(Wolverhampton LLB by Distance Learning, January 2001, Question 4.)
Study Unit 8 Suggested minimum study hours: 15
Topic
Redundancy
This Unit covers material contained in the Learning Project.
Introduction
An employee may be dismissed by reason of redundancy if the employer’s
business has changed or ceased. This Unit examines the circumstances in
which a redundancy situation will arise.
Objectives
a To identify the circumstances when a redundancy has occurred or is
planned.
b To explain what procedural steps normally will be required to make a
redundancy dismissal a fair dismissal.
c To be able to calculate the amount of redundancy pay due to a dismissed
employee.
Essential Reading
These titles have been supplied as part of your study materials.
Employment Law Textbook – Chapter 5
Cases and Materials on Employment Law – (See listed cases)
General Reading
These titles have not been supplied and are not essential reading, but
you may wish to refer to them to further your understanding.
Selwyn’s Law of Employment, Selwyn – Relevant Chapter(s)
Smith and Wood’s Industrial Law, Smith and Thomas – Relevant
Chapter(s)
Employment Law, Pitt – Relevant Chapter(s)
Bowers on Employment Law, Bowers – Relevant Chapter(s)
Employment Law, Desmond and Antill – Relevant Chapter(s)
Case law and statutes
ALTERNATIVE EMPLOYMENT
Cambridge and District Co-operative Society v Ruse [1993] IRLR 156
Fuller v Stephanie Bowman (Sales) Limited [1977] IRLR 87
Spencer v Gloucestershire County Council [1985]IRLR393 (CA)
Vokes v Bear [1974] ICR 1
TRIAL PERIOD
Benton v Sanderson Kayser [1989] IRLR 19 (CA)
Elliott v Richard Stump Ltd [1987] IRLR 215
BUSINESS REDUNDANCY
Nelson v British Broadcasting Corporation (No 2) [1977] IRLR 148 (CA)
LOCATION REDUNDANCY
Bass Leisure Ltd v Thomas [1994] IRLR 104
High Table v Horst [1997] IRLR 513
O’Brien v Associated Fire Alarms Ltd [1968] 1 WLR 1916
JOB REDUNDANCY
Chapman v Coonvean and Rostowrack China Clay Co Limited [1973]
ICR 310 (CA)
Hindle v Percival Boats Ltd [1969] 1 WLR 174
Johnson v Nottinghamshire Combined Police Authority [1974] IRLR 20 (CA)
Murphy v Epsom College [1984] IRLR 271
Safeway Stores plc v Burrell [1997] IRLR 200 (EAT)
Sanders v Ernest A Neale Ltd [1974] IRLR 236
Vaux and Associated Breweries Limited v Ward [1969] 7 KIR 308
CONSULTATION
Mugford v Midland Bank [1997] IRLR 208
Polkey v AE Dayton Services Ltd [1988] AC 344
TRANSFER OF UNDERTAKINGS
Berriman v Delabole Slate Ltd [1985] IRLR 305
ECM (Vehicle Delivery Service) v Cox and Others [1999] IRLR 559 (CA)
Litster v Forth Dry Dock Engineering Co Ltd [1989] 1 All ER 1134
Süzen v Zehnacker Gebaudereinigung GmbH Krankenhausservice [1997]
IRLR 255 (ECJ)
Wilson and Others v St Helens Borough Council [1988] IRLR 706 (HL)
Employment Rights Act 1996: Part XI
Transfer of Undertakings (Protection of Employment) Regulations 1981
(TUPE)
Self-Study Questions
1 What is the importance of the recent decision of the EAT in Safeway Stores
plc v Burrell regarding the meaning of s139(1)(b) ERA 1996? Does it make it
easier or harder to identify a ‘redundancy situation’ of the type identified in
s139(1)(b)?
2 What constraint is imposed on employers by the TUPE Regs 1981 to
prevent them from making mass redundancies immediately before the sale of
their business to another employer? In what circumstances can such
redundancies be made without falling foul of TUPE 1981? Give an example
of those circumstances.
3 In Sanders v Neale it was argued that there was such a thing as
‘constructive redundancy’. The court rejected this argument. Why, so far as
the facts of Sanders v Neale were concerned; and why, on the wider question
of principle?
Sample Questions
1 Hans has worked for Kansal Ltd for the last two years. The company is
intending to sell the business to ABC Ltd. Hans has heard that ABC
Ltd will employ some of the workers currently employed by Kansal Ltd but the
workers will be offered new contracts.
Hans is worried that he may not be offered employment by ABC Ltd, or if he
is offered employment it will be on terms less favourable than those he works
under for Kansal Ltd.
Advise Hans on his legal position if ABC Ltd takes over Kansal’s business.
(Wolverhampton LLB by Distance Learning, January 2001, Question 5.)
2 Edie has worked as a cleaner in a factory for the last three years.
Yesterday she was told that in two weeks time she will be transferred to
another factory, owned by the same company, six miles away. Edie does not
want to transfer and thinks that the company has no right to order her to do
so.
Advise Edie.
(Wolverhampton LLB by Distance Learning, September 2001, Question 3.)
Learning Project Suggested minimum study hours: 50
In common with all the modules that form part of the LLB by Distance
Learning programme this module involves a Learning Project.
Undergraduate students at the University of Wolverhampton are required
to demonstrate that they are capable of independent research before they
can be recommended for the award of a degree. For distance learning
students this is assessed by reference to the Learning Project you
undertake in respect of each module.
It requires you to pay specific attention to a list of defined reading.
Commonly covering a range of cases and statutes you are required to
demonstrate your mastery of the area(s) of law concerned by undertaking
a compulsory question as part of the end of module examination. This will
commonly take the form of an extended legal problem and require you to
demonstrate not only that you understand the areas of law concerned but
are able to apply them clearly and without error. It could also take the form
of an essay question requiring you to demonstrate an ability to comment
on linked areas of law. Particular attention will be paid to the accuracy with
which you cite the law and the arguments of those responsible for its
development. You will also be expected to demonstrate that you
understand, and have not been confused by, the ambiguities and
contradictions that exist in the undergraduate study of the law.
This question, which will change with each examination paper, will account
for 50 per cent of the overall grade and require you to devote one hour of
the two-hour examination period to it. Please note that for each
examination you are allowed 15 minutes' reading time on top of the two
hours you have to write your answers. You may also take into the
examination the relevant Casebook and Statute Book. Please note that
these may not contain any additional notes or markings.
Learning Project for Employment Law 1: Dismissal and
Redundancy
Essential Reading
Employment Law Textbook (Relevant Chapter(s))
Cases and Materials on Employment Law (Relevant Chapter(s))
Painter, Holmes and Migdal (6th edition 2006) Oxford University Press
Guidance notes
This Learning Project is covered by Units 4, 5, 7 and 8 in your Module
Planner. In carrying out your reading and research you should have
special regard to the following key points.
• How a contract of employment can be terminated at common law,
particularly by notice.
• Compensation for common law wrongful dismissal.
• The relationship between wrongful dismissal and unfair dismissal.
• The statutory definition of dismissal, particularly constructive dismissal.
• The fair reasons for dismissal.
• Procedural fairness and the requirement for the employer to act
reasonably.
• Compensation for unfair dismissal.
• The statutory definition of redundancy.
• The relationship between a statutory redundancy claim and an unfair
dismissal claim, particularly the circumstances when an unfair dismissal
claim will succeed even though there is a redundancy situation.
Case law and statutes
See case law and statutes listed in Study Units 4, 5, 7 and 8.
Sample Questions
1 Zeedee Ltd employs a number of workers in their offices. Recently the
company has been dissatisfied with Ron, who has worked for the
company for the last two years. The increasing dissatisfaction is because
Ron has refused to work overtime when asked to do so, he has
encouraged other employees to complain about the working conditions
and last week he upset one of the company’s major customers.
Two days ago Ron had an argument with the manager, Sue. Sue has now
told the chairman of the company that if there is one more incident, she
will lose her temper and tell Ron that he is a ‘lazy, incompetent worker
who is just out to make trouble’.
Advise Zeedee Ltd whether they can dismiss Ron without incurring
liability.
(Wolverhampton LLB by Distance Learning, September 2001,Question 1.)
2 Sanjay has worked as a personnel officer for Ringlet Ltd for the last five
years. Until recently Sanjay has always received good feedback in staff
appraisals.
Six months ago, Ringlet Ltd employed John as a manager. John and
Sanjay have taken a dislike to each other and there have been a number
of arguments between them. Sanjay has been told by other employees
that John is constantly criticising him when Sanjay is not around.
Yesterday, Sanjay received a letter from Ringlet Ltd stating that his
contract of employment would be terminated in three weeks’ time. No
reason was given for the dismissal.
Advise Sanjay on:
a whether he has any claim against Ringlet Ltd; and
b if he does have a claim, the remedies available.
(Wolverhampton LLB by Distance Learning, May 2001)
Practice Question and Suggested Answer
The following test is designed for practice only and does NOT count as part
of the assessment regime. A Suggested Solution is, however, offered in the
following section. Students are advised not to consult this solution until they
have completed the test. It is expected that you will return your answer to
the College for marking and feedback.
Unless you undertake such work you will not gain an insight into your
academic strengths and weaknesses before you attempt the examination.
Before attempting your answer, please ensure that you understand the
assessment criteria explained in the Award Guide, and the guidance
contained in the section of the Module Planner headed ‘Skills to be
Developed and Examined’.
Question
‘The duties implied by the common law on an employer and employee
ensure that the employment relationship runs smoothly. The duties are
merely a commonsense approach to the relationship between the employer
and employee.’
Discuss the above statement with reference to the duties implied at common
law on both the employer and employee.
(Wolverhampton LLB by Distance Learning, May 2001, Question 3.)
Suggested Answer to Practice Question
NB: Do not consult this solution until you have completed the test.
Outline Answer
This question required a discussion of the common law duties implied on
both employer and employee alike. In answering this question, the following
matters should have been raised.
• Relationship between employer and employee – contract is one of
personal services.
• Implied terms: court’s approach – The Moorcock (1889); Shirlaw v
Southern Foundries Ltd (1939).
• Employer: eg pay; if employee is willing and able to work –
Secretary of State for Employment v ASLEF (No 2) (1972); provide work;
exceptions to the Turner v Sawdon & Co (1901) principle; to maintain trust
and confidence – Malik v BCCI SA (1997).
• Employee: eg to obey lawful and reasonable orders; to use reasonable
skill and to give indemnity – Lister v Romford Ice and Cold Storage Co Ltd
(1989).
Answer
Note: this answer is based on one written by distance learning student
covering the question set as part of an examination.
It is true that to encourage a smooth relationship between employer and
employee, some duties and obligations need to be implied into the contract
of employment.
Contracts of employment express certain obligations which mustbe followed
by each party, but sometimes, policies which seem rather trivial and in fact
ought to ‘go without saying’ arise, having not been expressly incorporated
into the contract; this can give rise to a number of conflicts. Implying terms
that are of a commonsense nature is an obvious route that could be taken;
however, the judges in Mears v Safecar Security Ltd (1982) cautioned that
to imply a term is one thing, but terms must not be implied into the contract if
they would not have been agreed upon by the parties to that contract.
From the point of view of the employers, there is an implied term that they
must pay wages, even though it may be that there is no work. Nonetheless
this term may be varied: if the reason for there being no work is not the fault
of the employer, he may not have to pay (Browning v Crumlin Valley
Collieries Ltd (1926)). He may not, however, without an express contractual
term, particularly within certain industries (like construction), lay off
employees without pay.
He must also pay even when employees are absent due to sickness (Mears
v Safecar Security Ltd (1982)). Employers cannot suspend without pay
unless the contractual rights allow it (Marshall v Midland Electric (1945)) and
this also applies to piece workers (Devonald v Rosser & Sons (1906)).
There is no obligation to provide work as laid down in Collier v Sunday
Referee Publishing Co Ltd (1940), unless the failure to do so will cause a
loss of reputation, as with actors for example (Herbert Clayton and Jack
Waller Ltd v Oliver (1930)), or loss of practice. There is a duty to provide
care (Lister v Romford Ice and Cold Storage Co Ltd (1989)) though the
employee must not expect to be treated as a child and should also take
his/her own precautions. Safe working environments, supervision, training,
etc must be provided by the employer, as well as properly functioning
machinery, protective clothing and warning signs (where appropriate).
Employers owe employees the right to privacy, mutual trust and confidence,
and should also (must) provide grievance procedures. On the other hand,
employees owe employers the duty of fidelity and must not divulge trade
secrets, nor work for the competition in areas that will be detrimental to the
employer. They must obey reasonable and lawful orders (Pepper v Webb
(1969); Wilson v Racher (1974)), exercise reasonable care and competence
(Rose v Plenty (1976)), and must not compete or impede the employer’s
business (Hivac Ltd v Park Royal Scientific Instruments Ltd (1946)). An
employee must not, as an ex-employee under the existence of a restrictive
covenant, set up in competition, or pilfer other employees or customers from
the employer’s business to his own business. He must also not misuse
company equipment. There is, however, no duty to report misdeeds of his
own (Bell v Lever Brothers Ltd (1932)).
These simple, commonsense implied terms serve to simplify the running of
any business with the cooperation of all involved. They have the strict force
of express terms and statutory obligations.
Marker’s comment on Student Answer
This was a good answer in that it covered the main points and there was an
attempt to address the question. However, at times there was a tendency to
list obligations without further explanation. Some statements did not go so
far as to properly explain the obligations. One serious flaw was the failure to
discuss the implied duty of mutual trust and confidence. This duty has
played a pivotal role in the development and use of constructive dismissal.
The employer’s duty to cooperate with the employee in fulfilling his
contractual duties is another of the most important implied obligations in
practice.
Another omission was the failure to discuss the circumstances in which
a Tribunal will imply a term. Also there was no mention of the relative
authority of implied as opposed to express terms.
Revision
What to revise
Consider carefully what you have been told about the format of the
examination. How many questions will you be required to answer in what
length of time? Work out how long you are likely to have to write an answer
to any one question.
Look at past exam papers. A sample can be accessed via the School of
Legal Studies website www.wlv.ac.uk/sls. They may help you to identify the
questions which are most likely to appear on your exam; and on which you
can concentrate your revision. This is known as question spotting and,
although this is not advisable, it may sometimes be necessary. If you have
to do this, you should revise two additional topics just in case: the question
on one of the topics on which you have concentrated most may be phrased
in such a way that you are not certain how to answer it. It is, however, safer
to deal with every topic in the module so that you are prepared for all
questions.
By looking at past exam papers you may also be able to determine whether
certain topics tend to be examined by way of problem scenarios or general
discussion questions. Structure your revision to accommodate the different
approaches those two different types of question require.
Look closely at the topics covered by the module. Those topics which have
been given the greatest emphasis are a good bet to appear in the exam.
The question in the Learning Project is compulsory so make sure that your
revision is thorough on the topic, or topics, it covers.
Planning your revision
The best method of revision is to revise continuously throughout your study
of a module, but whether you revise continuously or prefer the last minute
approach, try to relax on the day before an exam. To do well you need to be
both physically and mentally fit.
Well before the exam period make yourself a revision calendar. Make sure
that the revision period you plan is long enough to cover all of the modules
you have studied, and gives you regular breaks away from your studies.
You need to start your revision at least two weeks before the examination
period. It is not wise to plan to revise for more than an hour at a time without
a short break. You should build in some days in which you put revision
aside altogether and do something which will take your mind off the
upcoming exam period.
Don’t just divide the revision period equally between topics. Make a realistic
appraisal of which topic(s) you are weakest in and plan to give them the
most time. In deciding how much time to give each topic you should also
take into account how much the exam counts towards your overall mark. In
other words, plan your revision to do best on exams which will give you the
most benefit in terms of your overall results.
Do not concentrate all your revision of any one topic in a solid block. You
will find that your concentration will be better if you rotate your revision from
topic to topic.
Plan your revision of any one topic in stages. The first stage is to acquire a
knowledge of the topic. This involves re-reading your notes and whatever is
necessary in your books. The second stage is to break that knowledge
down into easily remembered key components. The third stage is to hone
your ability to identify issues and relate them to those key components. This
is best accomplished by writing answers to past exam questions.
How to revise
If you have any general problems with your studying, don’t just sit there
hoping it will come right in the end; contact the Module Leader or the
College.
There are a number of stages in the revision process. First you have to
ensure that you have an adequate knowledge of the topics. This is a matter
of re-reading notes and filling in gaps by reading relevant sections of your
Textbook or other materials until you have reached the point where you
understand the material being dealt with.
While you are reviewing your notes and other study materials, you should
be identifying and marking key points which you can return to when you
start to make your revision notes.
Remember: revision can only be effective if it is based on a previously
acquired basic knowledge and understanding of the topics.
The second stage of revision is to create a set of revision notes.
These will be aimed at (1) setting out key points and (2) relating these to
each other in such a way that they form a coherent picture of a particular
topic (3) identifying key cases and/or statutory provisions which you need to
know details of.
There are numerous ways of structuring revision notes. Which you choose
will be a matter of personal preference. The basic aims, however, are to
create a set of notes which you can review quickly many times; and one
from which you can retain a vivid mental image so that you will be easily
able to recall them in the examination.
Therefore your revision notes should be made up of key words and
phrases. Each entry in the notes should represent a condensation of
information about the topic at hand. Strike a balance between brevity and
comprehensiveness. Some concepts may be too complicated to remember
without a detailed note. Others readily lend themselves to summing up in a
phrase of even a word or two. A rule of thumb is to confine all the revision
notes on one topic to one page or less of A4 paper.
Using different colours for different topics, or writing the notes so that they
create a distinctive pattern on the page, is a way of creating a vivid mental
image of your notes. During the exam you may be able to recall the
particular information you need by calling up a ‘picture’ of the information. A
stepped outline or a spider diagram are two of the ways you can create a
pattern which will help you to recall information by focussing on the image
and the way it was written down. Spider diagrams are especially useful for
creating an image of the way ideas or rules link together.
Your friends may think you have become very eccentric but it is a good idea
to stroll about your room reciting out loud the contents of a page of revision
notes. This, after all, is how actors learn their lines before a performance,
and you are doing the same thing when you set out to learn your revision
notes before an exam.
You may be tempted to shortcut the process of building up a set of your
own revision notes by buying one of the many revision guides which are
available. These can be extremely useful to give you a very condensed
overview of a topic, but remember this: what makes for exam success is
displaying to the examiner your own knowledge of the topic. The only way
to create your own knowledge of the topic is to create your own set of
revision notes using all those other sources
The third stage of revision is self-testing. Pick a question from a past exam
– and this is where having made a considered choice about which topics to
revise is essential – and write an answer to it under ‘exam conditions’: ie
taking the length of time you would be given to do the question in the exam.
Then go back over your revision notes on that topic and see what you have
left out, what you did wrong and what you put in that was not really relevant
to the question asked.
You may want to return to your original notes from lectures and reading and
have another look at that material. After half an hour or more break, pick
another question on the same topic and write an answer to it. Go through
the same review process again. Repeat the whole process once or twice
more. The advantages of doing this will soon become apparent. You will
identify weaknesses in your knowledge and/or understanding. You will see
how some components of an answer to a question on a particular topic will
re-appear over and over again no matter how the question is worded, and
you will have written those bits down often enough that you will not have to
spend time in the exam trying to work out how to phrase that part of your
answer.
The benefit of self-testing is enormously enhanced if you do it as part of a
group. Three or four of you working together will amongst you have a very
comprehensive knowledge of any topic. What you are weak on, you can
pick up from one of the others and vice versa. There is also the
psychological boost which comes from working as part of a team. You will
find that some of the things you thought it was important to write about
completely eluded other members of the group. Also, you will not have seen
some important point which they did. Discussing all of your answers
together will help you to craft a complete answer to all of the aspects of the
question. If you are not in contact with fellow distance learning students, ask
members of your family or friends to test you. As well as helping you, this
will give them a valuable insight into how much your studies
mean to you and the hard work involved.
Taking the Examination
Hints for Answering Questions
The very first thing you must do is to read the whole question. If the
question is a problem:
DO
Ask yourself:
• Why am I being asked to advise this person?
• What has gone wrong?
• What are the areas of law involved?
If the question is an essay:
DO
Ask yourself:
• What area of law does the essay cover?
• Which part of that area of law is the essay asking me to discuss?
• Which points do I have to focus on in answering the question?
DO NOT, IN EITHER TYPE OF QUESTION
• Start writing before you have read the whole question.
• Identify one area of law and write all you know about that area without
putting it into the context of the question.
The next step is to write an outline plan of your answer. In this plan, you
should identify the main points in the problem. If you do not want the plan to
be taken into account in your answer, then cross it through and your
examiner will ignore it. When you are writing your answer, follow your plan.
This will help you avoid discussing areas of law which are not relevant to
the question. It will also help you ensure that you cover all the points raised
in the question and do so in a
logical, reasoned way. After you have read the question and written your
outline plan you should re-read the question and then attempt the answer.
WRITING THE ANSWER
In writing your answer, start at the beginning and work through to the end.
Make sure that you deal with each issue raised and that you apply the law
to the relevant points. Reach a conclusion at the end. Do not start with your
conclusion as you may find, part of the way through your answer, that you
realise your original conclusion was wrong and you will have to start again.
Always give authorities for your answers. These authorities will be statutes
and/or cases.
DO
• Address the issues from the start of your answer.
• Start at the beginning and work through to the end.
• Reach a conclusion at the end.
• Relate your answer to specific points in the question.
• Give authority for every point of law you make.
• Write clearly and in good English.
• Time your answers.
DO NOT
• Write all you know about the area before you start actually answering the
question; you will only have to write it out again in dealing with the specific
points in the question.
• Reach a conclusion at the beginning.
• Move away from the structure of your outline plan.
• Give unsupported statements of law.
• Spend so long answering one question that you do not have enough time
to answer the rest.
• Write in note form (unless you have spent too much time on your previous
answers and are left with insufficient time to write a full answer).
• Copy large amounts of material from the books you are allowed to take
into the examination. Make sure that you put all quotations in quotation
marks otherwise you may be thought to have been cheating.
Module Questionnaire
Employment Law 1
The School of Legal Studies and Holborn College attach great importance
to your views. We would, therefore, be grateful, if now that you have
finished studying this module, you would answer the following questions
and return them to the address give below. Your answers will be considered
by the distance learning teaching team and used in updating teaching
materials.
1 What two things did you find most useful about the materials you were
provided with for this module?
____________________________________________________________
____
_____________________________________________________
2 What two things did you find least helpful about the materials you were
provided with for this module?
____________________________________________________________
____
_________________________________________
3 Please identify any typographical errors you encountered in using this
planner (please make reference to appropriate page numbers).
____________________________________________________________
____
___________________________
Return to:
External Programmes Administrator
School of Legal Studies
University of Wolverhampton
Arthur Storer Building
Molineux Street
Wolverhampton
WV1 1SB
United Kingdom
You may if you wish e-mail your answers to in4655@wlv.ac.uk