Employment Law – Express and Implied Terms – Education

January 25th, 2011 admin


The case of Luke v Stoke-On-Trent City Council [2006], involved an employee who had been employed as a special needs teacher at the local authority’s Assessing Continuing Education Pupil Referral Unit (“the ACE Centre”) since 1996. The ACE Centre was the only one of its kind operated by the local authority, and under the terms of her contract of employment (“the ACE Contract”), the employee was required to work at the ACE centre for 12 and three quarter hours per week.

From April 2003, the employee had a separate contract of engagement with the local authority governing the terms of her appointment at a different unit. Problems arose between the employee and the head teacher of the ACE Centre. Between October 2002 and April 2003, the employee was absent due to ill health. She alleged that she had been the victim of bullying and harassment by the head teacher of the ACE Centre.

The local authority commissioned an independent investigator to examine the employee’s complaints. All of the employee’s complaints were dismissed except for one, and the investigator proposed a return to work action plan designed to assist her in resuming her work at the ACE Centre. The employee indicated that whilst she was willing to take part in the action plan, she was not willing to accept the conclusions drawn by the investigator.

The local authority took the stance that the action plan would have been unworkable on that basis.

On the 13th of June 2003, the local authority formulated a proposal that the employee’s return to the ACE Centre would be deferred, perhaps forever. She would be found equivalent hours performing similar work within other parts of the authority.

Initially, the employee agreed to that proposal in principle but, in August 2003, she indicated that she found the proposal unacceptable and that she was still intent upon resuming her employment at the ACE Centre. The local authority maintained its position that the employee’s return to work at the ACE centre remained unworkable given her refusal to accept the conclusions of the investigator.

Several alternative proposals were suggested by the local authority which involved the employee working at sites other than at the ACE Centre. The proposed alternatives were deemed unsuitable by the employee, who insisted upon a return to the ACE Centre. Throughout that period, the employee continued to receive remuneration under the terms of the ACE Contract.

Finally, on the 11th of February 2004, the local authority ceased payment of the employee’s wages. The employee brought a complaint before the employment tribunal alleging that at all material times she had been ready and willing to do the only work that she had been contractually obliged to do, namely her work at the ACE Centre. She therefore submitted that her wages had been unlawfully deducted within the meaning of Part II of the Employment Rights Act 1996.

The tribunal dismissed the employee’s claim. It found that the local authority had reasonably reached the conclusion that her return to work at the ACE Centre was unworkable in the light of her refusal to accept the conclusions of the investigator or the terms of the proposed action plan. In those circumstances, despite the express terms of the ACE Contract, there had been an implied term of the contract permitting the local authority to require her to work at a location, other than that specified in the contract, provided that the employee suffered no detriment. However this could only happen whilst a long term solution to the question of her return to work at the ACE Centre was being resolved.

The employee appealed.

The issue which fell to be determined before the Employment Appeals Tribunal was whether the local authority had been contractually entitled to require the employee to work otherwise than at the ACE Centre.

The appeal was dismissed. It was held that where a written contract clearly defined an employee’s contractual duties, the employee ought to be entitled to proceed upon the basis that the employee was not obliged to undertake different duties. In such situations, the finding of an implied obligation to undertake work outside the express terms of the contract would only have been permissible in exceptional circumstances. Such exceptional circumstance being where the requirement was justified, the work was suitable, and the employee suffered no detriment in terms of contractual benefits or status due to the change of duties on a temporary basis.

In this case, the view adopted by the employee in relation to the conclusions of the investigator and the terms of the action plan had given rise to such exceptional circumstances. The tribunal had properly considered all the relevant factors in reaching its conclusions, and in those circumstances had been entitled to make the finding that the ACE Contract contained an implied term entitling the local authority to require the employee to conduct work outside the scope of the express terms of the contract.

If you require further information please contact us at enquiries@rtcoopers.com or Visit http://www.rtcoopers.com/practice_employment.php

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Employment Law on Redundancy – When Redundancy Becomes Unfair Dismissal

January 25th, 2011 admin


Did your employer make your job redundant? Of course, you should take a look at reasons for the decision. Are you singled out to take a redundancy? Is the business really not doing well? Is the employer looking for a new employee who would occupy your position? Be aware that there may be cases when employers inappropriately and illegally make employees redundant. You need to take a look at the UK employment law on redundancy.

You should be aware that in the employment law on redundancy, if you have been made redundant for illogical and unreasonable reasons, you may file for an unfair dismissal claim or case. Many employees fail to differentiate the two.

According to the employment law on redundancy, there is an unfair dismissal instead of redundancy if the following situations are observed. First, the redundancy is not actually real. This happens when you see on the classified ads that the employer is looking for a direct replacement for your position. You may also learn that the new employee has been immediately hired after you have been made redundant.

Second, there is unfair dismissal, not redundancy, if the employer failed to properly and adequately consult you before you were made redundant. It is a standard practice that employers notify in writing employees in advance before any redundancy is declared. There should also be a formal meeting set by the employer to discuss the situation and explore possible options, including an alternative offer for employment or a possible transfer to another business unit. The employment law on redundancy also mandates the employers to inform and at the same time consult a recognized union for at least 30 days prior to the redundancies if 20 or more employees are to be made redundant.

Third, you have been unfairly selected. This means that the employer’s decision to choose you for redundancy is not objectively justified as fair and in due accordance with employment law on redundancy. There must be a consideration given to important factors or issues like length of service, time keeping, productivity, and possible future requirements of the company.

Fourth, if there is a business transfer or a change in ownership, there is no need to make jobs redundant in connection with the business transaction. If you have been made redundant prior to the sale of the business or after the change of management, you could count it as an automatic unfair dismissal, as stated in the employment law on redundancy.

Lastly, there is unfair dismissal if the employer failed to offer you a suitable alternative employment within the company. You have the right to decide whether to take another job or position under the same employer. If you think you would not do well in other jobs within the company, you may refuse the offer and automatically qualify for an appropriate redundancy package. Employment law on redundancy clearly states this.

If the employer senses that you are out to file for an unfair dismissal claim and case, he or she may offer you a compromise agreement. You must hire an independent employment solicitor of your choice to get guidance in understanding and entering into the agreement. The employer has the responsibility to shoulder all costs hiring a solicitor could possibly incur.

By: David T Evans

About the Author:
This is a resource for compromise agreement information specific for UK Law. For more information from compromie agreement solicitors please visit our website www.ukcompromiseagreements.co.uk.



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Employment Law – Vicarious Liability – Harassment – Depression

January 25th, 2011 admin


The case of Hammond v INTC Network Services Ltd [2007], concerned issues relating to vicarious liability where a claimant complained that the defendant’s conduct causing him to suffer clinical depression. The claimant in this case was employed by the defendant until he was eventually made redundant.

The claimant was suffering from clinical depression which he maintained had been caused principally by the conduct of the defendant, its employees or agents. He alleged that this was either negligent or amounted to harassment contrary to the Protection from Harassment Act 1997 (“the Act”).

The claimant made a number of allegations in relation to the employer’s conduct that he argued amounted to harassment. The conduct in question included the fact that he had been moved to another part of a project for a week.

In response to the defendant’s reliance on contemporaneous documents, the claimant asserted that the documents had either been forged or altered.

The court, in applying settled principles, held that conduct had to have an element of real seriousness in order to amount to harassment under the Act. The conduct had to be deemed to be oppressive and unacceptable. If interpretation of the law meant that employers were faced with allegations of harassment every time that they made an operational decision, the commercial world would grind to a halt.

Furthermore, the court felt that it was important in a negligence claim concerned with workplace stress that in order for an employer to be liable it had to be demonstrated that the employer knew (or ought to have known) that the employee would not be able to withstand the pressure of the job.

The court further felt that the documents were genuine contemporaneous documents, and were the best evidence of the defendant’s conduct at the time in question. They established that the events leading up to the employee’s redundancy either did not happen at all, or were the result of reasonable management decisions. The court therefore stated that this case was the complete opposite of harassment. Accordingly in such circumstances neither claim could be allowed to succeed. In addition, and in relation to the claim for negligence, the claimant had not shown that his disorder had been foreseeable by the defendant. As a result, the court dismissed the claims.

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