LEVEL 3 - UNIT 6 EMPLOYMENT LAW SUGGESTED ANSWERS - JUNE 2014

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1 Note to Candidates and Tutors: LEVEL 3 - UNIT 6 EMPLOYMENT LAW SUGGESTED ANSWERS - JUNE 2014 The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the June 2014 examinations. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners reports which provide feedback on student performance in the examination. SECTION A 1. Three advantages of being an employee rather than being self employed are firstly, that employees have statutory rights such as the right not to be unfairly dismissed. Also, employees are entitled to a redundancy payment. Employees are also entitled to a minimum wage. 2. (a) One way that a common law term may be implied into a contract of employment is if the term is needed for business efficacy. (b) Two terms implied by common law and owed by an employer to an employee include the duty of trust and confidence and the duty to pay wages. 3. Two examples of terms that must be included in the Section 1 Statement are the names of the parties and the date that continuous employment began. 4. Under s86 of the Employment Rights Act 1998, Emma must give one week s notice to her employer. 5. A claim for indirect discrimination arises where an employer introduces a provision, criteria or practice (PCP) that puts a particular group at a disadvantage because of a protected characteristic. The defendant would have to show they were put at that disadvantage and that the PCP is not a proportionate means of achieving a legitimate aim. 6. A restrictive covenant is a contractual clause that an employer could use to protect their business interests when an employee leaves. If reasonable in time, scope and geography, its effect is to prevent an employee from working for a similar business and/or to prevent that employee from contacting the existing clients of the business. Page 1 of 5

2 7. Potentially fair reasons for dismissal under s98(2) ERA 1998 are: 1. Capability or qualifications 2. Conduct 3. Redundancy 4. Illegality 5. Some other substantial reason 8. The 3 stage procedure set out in BHS v Burchill (1978) that should be used in a misconduct case is: 1. Employer must have a belief that the employee is guilty. 2. Employer must have reasonable grounds for the belief that the employee is guilty 3. The employer must have carried out as much investigation as was reasonable to establish the grounds for his belief. 9. An employee may bring a claim for wrongful dismissal in circumstances where they are dismissed without the correct notice period; or are dismissed in lieu of notice or are summarily dismissed in circumstances where they have not committed a fundamental breach of contract. Scenario 1 Questions SECTION B 1. (a) Factors and tests indicating Zoe is an employee are: Control test Told by Mario what to bake Multiple/Economic reality test Generally personal service Length of service-2 years Working full time Deduction of tax and national insurance Is told by Robert to use grievance procedure (b) Factors and tests indicating Zoe is self employed are: Multiple/Economic reality test Personal service not essential Zoe has sent her brother on one occasion Right of substitution allowed Giuseppe has no problem with this Zoe brings her own baking equipment into Italianos Submits invoices every month 2. Zoe may be able to bring a claim for direct discrimination under s13 of The Equality Act 2010 on the grounds of sex which is a protected characteristic under s 11. Zoe must establish that but for her sex, she would not have suffered less favourable treatment. Here, it was her refusal to go on a date with Mario that led to him calling her a stupid cow ; throwing her equipment at her and telling her to get out and not come back. Zoe may also bring a claim for harassment unders26 of the Equality Act 2010 on similar grounds. Harassment is defined as the situation where there is unwanted conduct of a sexual nature that violates dignity and/or Page 2 of 5

3 creates an intimidating/hostile working environment. Here, calling Zoe a stupid cow amounts to harassment. 3. (a) Mario has a potential statutory claim under the Working Time Regulations This limits the working hours of an employee to 48 per week over a 17 week period unless an opt-out is signed. Here, Mario has been working 13 hour days for over 12 months. Also, Mario is entitled to 28 days holiday per year but he has not been allowed to take any holidays for the past 12 months. In conclusion, Mario can sue Italianos. (b) Mario has a potential common law claim because Italianos is in breach of the common law duty to look after an employee s health and safety. This duty arises under Wilson & Clyde Co v English and means that Italianos have a duty of care to provide Mario with a safe system of work and effective supervision. They have breached this duty by allowing Mario to work excessive hours; by refusing his requests for time off for holidays and by not making him take time off work when he is diagnosed with work related stress. In conclusion, Mario can sue Italianos. 4. Robert may be able to bring a claim for victimization under s27 Equality Act This is where a person is treated less favourably because he enforced his own or someone else s legal right to be protected from discrimination. This was shown in St Helen s Borough Council v Derbyshire. Here, Robert is threatened with the sack, you ll be the next one out of the door if he supports Zoe s claim against Mario for discrimination on the grounds of sex. Scenario 2 Questions 1. In order to bring a claim for unfair constructive dismissal, Edna will need to establish that Catherine has repudiated the contract of employment. This means Edna will have to prove that there has been a breach of the duty of trust and confidence by Catherine insisting that she use the new computer system or face disciplinary action. However, Catherine will argue that the threat of disciplinary action is justified in circumstances where Edna is refusing to use the new computer system even after training has been provided. Catherine will say that a refusal to obey a lawful order is misconduct and this could be a potentially fair reason for dismissal. Edna is unlikely to succeed in an unfair dismissal claim. 2. (a) In order to bring a claim for unfair dismissal, a claimant must establish they are an employee. Here, Ahmed is described as employed. A claimant must also establish that they have been continuously employed for at least two years. Here, Ahmed has worked at the school for two years. Next, the claimant must establish they have been dismissed. Here, Catherine summarily dismisses Ahmed. He therefore, satisfies the eligibility criteria. (b) The remedies for unfair dismissal if Ahmed succeeds in his claim are: Reinstatement Reengagement Compensation Ahmed s conduct in leaving young children unsupervised causing one child to suffer an injury will affect his entitlement to a remedy in the following ways. He is unlikely to be able to claim reinstatement since a Page 3 of 5

4 replacement was recruited for his job immediately. He is unlikely to claim reinstatement as there is no indication in the scenario that there are any other teaching jobs at the school Any compensation will be reduced by Ahmed s behaviour as his negligence contributed to his own dismissal. 3. (a) In order to constitute a disability within the meaning of s6 of the Equality Act 2010, George must establish that he has a physical or mental impairment. His skin condition would be a physical impairment. He must establish that it is long-term. Here, he has been told that it is permanent. He must also establish that his skin condition has a substantial adverse effect on his ability to do day to day activities. Here, he cannot hold things firmly. He will meet the criteria for a disabled person within the meaning of the Act. (b) The most likely discrimination claim that George can make is that Catherine has failed to make reasonable adjustments. The school has a duty under s20 of the Equality Act The employer has to consider the practicability of the adjustment; how effective the adjustment will be and the cost of the adjustment given the employer s financial and other resources. Here, the switch to skin-friendly cleaning products is cheap and easy to do given that the bleach used is making the skin problem worse. The school is not allowed to make the George pay for the new products. Financial compensation is the most common remedy available to George. This compensation is for injury to feelings. It is potentially unlimited but the Vento guidelines set out three bands ranging from the least to the most serious injury to feelings. Scenario 3 Questions 1. (a) Any claim by Lech Balik arises under s39 of the Equality Act 2010 which provides that an employer must not discriminate in its recruitment practices. Lech Balik may be able to bring a claim for direct discrimination under s13 of the Equality Act 2010 on the grounds of race which is a protected characteristic under s9. Lech Balik must establish that but for his race, he would not have suffered less favourable treatment. Here, Lech Balik will argue that he was not selected for interview purely because of his Romanian name. Ameel made an assumption that he was Romanian and so would have poor English speaking skills. Ameel may argue that good English speaking skills are a genuine occupational requirement for this job but he made rejected Lech Balik without having any idea of his English speaking skills. On that basis, Lech Balik has a potential claim. (b) Section 4 of the Equality Act 2010 sets out certain protected characteristics. Regional accent or postal address is not a protected characteristic. Sharon Bosworth does not have any discrimination claim. 2. (a) Michael has a potential wrongful dismissal claim against Kempston Call Centre. This is a breach of contract claim. Michael s contract includes a three month notice period whereas Ameel has only paid him the one week s minimum statutory notice. This is inadequate and Michael is entitled to sue for damages in respect of the unpaid notice period. (b) Michael is entitled to damages to put him in the position he would have been in had he been paid his contractual notice. He should have been Page 4 of 5

5 paid 12 weeks net pay (3 months) rather than 1 weeks net pay. He is also entitled to the value of all his contractual benefits for 11 weeks. This includes the financial value of 11 weeks worth of private healthcare; 11 weeks worth of subsidised gym membership and 11 weeks worth of free lunches. If Michael decides to bring this claim six months after being dismissed, he will have to issue it in the civil courts rather than in the Employment Tribunal. The time limit for bringing a claim in the ET is 3 months and so he is out of time for this venue whereas the time limit in the civil courts is 6 years. Given the value of his wrongful dismissal claim, Michael is most likely to issue proceedings in the County Court. 3. There is no common law duty on an employer to provide a reference to an employee. However, if a reference is provided, it must be accurate. If an inaccurate reference is produced, the employee has a potential claim under Spring v Guardian Assurance plc. Here, Ameel has written an inaccurate reference which has prevented Rona from getting a new job. On that basis, Rona can claim against Kempston Call Centre for negligent misstatement. 4. The duty of obedience requires the employee to obey all lawful and reasonable orders given by the employer. In Pepper v Webb, a gardener was asked to plant some flowers and he refused. He was in breach of this duty. Also, the duty of good faith which requires an employee to account to his employer for all profits received. In Boston Deep Sea Fishing v Ansell, the defendant managing director did not tell his employer that he had accepted money from a client for placing an order with them. 5. Janine s conduct in downloading a virus amounts to a repudiatory breach of contract. That means she is not entitled to the payment in lieu of notice. Page 5 of 5