LPC Law Notes Employment Law Notes
A collection of the best LPC Employment notes the director of Oxbridge Notes (a former Oxford law graduate) could find in 2014 after combing through seventeen LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of Employment Law notes available in the UK this year. This collection of notes is full...
The following is a more accessible plain text extract of the PDF sample above, taken from our Employment Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Claims
Wrongful dismissal
Contractual claim for breach of contract = damages
REMEMBER - for ET Claims:
Must arise/be outstanding on the termination. (Capek v Lincolnshire County Council) the COA held tribunals have no jurisdiction to hear claims for breach of contract lodged prior to dismissal
No damages over 25,000
No claims for breach of confidentiality/restrictive covenants
Employer can counterclaim
Must be within 3 months of termination
Time limit
ET = 3 months of dismissal (Civil = 6yrs of dismissal)
Has there been a dismissal?
Actual = sacked
Constructive = Employer commits a repudiatory breach of express/implied term and employee entitled to resign in response (with/without notice) and treat the contract as discharged (must be within reasonable time of breach)
Is the dismissal wrongful?
Actual - No notice/insufficient notice (unless employee conduct caused dismissal) - stat min notice = 1 week per year of employment up to 12wks
Is there a PILON clause?
Yes = no claim
No but money accepted = no breach
No but money received but not accepted as waiving breach = technically still wrongful dismissal but not financially worth pursuing
Boston Deep Sea Fishing v Ansell - pre-dismissal misconduct discovered after dismissal may justify dismissal without notice
Fixed term contracts: pre-expiry is wrongful unless (1) in accordance with terms of a break clause (2) justified by the employee’s gross misconduct
Constructive dismissal - Employer’s repudiatory breach itself renders the dismissal wrongful e.g. breach of implied term of trust and confidence
Compensation
Damages for breach of contract - for proper notice period or until end of fixed term (unless break clause)
must not be too remote
must either arise naturally from the breach or be such as may reasonably be supposed to have been in the contemplation of both parties at the time of contract, as the probable result of the breach (Hadley v Baxendale)
Purpose is to put C in position had they not have been wrongfully dismissed
PLUS additional contractual losses (e.g. commission, health insurance, car, bonuses that were contractual)
Pension - 2 types: loss of the pension position earned to the date of dismissal, and loss of future pension opportunity.
Holiday pay – Payment in lieu of any holiday entitled to but had not yet taken - max 2yrs back pay
Reducing factors
Payments made (e.g. Payment in lieu - deducted from damages)
Certain benefits (e.g. jobseekers/income support)
Duty to mitigate (must look for another job and not unreasonably reject for notice period)
Accelerated receipt (any payment made before it was due i.e. for long term fixed terms where payment of damages paid before the salary would have - used to minimise benefits from early payment such as interest accrued)
Employment tribunal – maximum award 25,000
Civil court – no maximum
PLUS ACAS - increase/decrease by 25% for unreasonable compliance with ACAS code
Unfair dismissal
Eligibility (burden of proof on employee)
Time limits - 3 months (less 1 day) from EDT
Effective date of termination = date the notice expires, or the date termination takes effect (s97/145 ERA 1998)
Employee - not worker/self-employed
2 years’ service (for employees employed by current employer on or after 6 April 2012; 1 year for all others)
Not be part of an excluded class
Dismissal (burden of proof on employee)
Expiry/non-renewal of fixed term contract
Actual – sacking with or without notice
Constructive dismissal – employee resigns as result of employer’s repudiatory breach of contract and treats contract as discharged (Western Excavating v Sharp)
Reason for dismissal (ERA 1996, s 98(2)) (burden of proof on employer)
What is the main reason for the dismissal? - will be potentially fair if one of the 5 reasons. If not = unfair
Does that reason fall within one of the five potentially fair reasons?
Redundancy – will be unfair if redundancy is not dealt with fairly however
NB If reason is redundancy, consider claim for both unfair dismissal and a redundancy payment
Conduct – any misconduct, usually in the course of employment but may also be outside of employment if it has an effect on the employment relationship
Capability/qualifications – incompetence or inability due to skill aptitude, health or other physical/mental quality to do the work for which they were employed
Illegality – where it has become illegal either under statute for the employee to work or for the employer to employ
Some Other Substantial Reason – covers anything outside the above 4 but onus on the employer to show dismissal for SOSR is fair (e.g. readjustment of hours, replacement by better qualified person, clash of staff personalities, risk of damage to reputation)
Consider fairness of dismissal (ERA 1996, s 98(4))
Question of fact for tribunal
S98(4) – should consider first – fairness depends on size and administrative resources of employer (smaller firms may have more reason to dismiss and replace for example), equity (long service = more consideration), sufficiency of the reason given by the employer (Range of Reasonable Responses), substantial merits (fair, consistent, main cause of dismissal)
Test – Range of reasonable responses (Iceland Frozen Foods) – will be reasonable if the reasonable employer, in the circumstances would consider the dismissal a reasonable response (sufficient to know that a reasonable employer would – doesn’t need to be all employers)
Should be based on information available to the employer at the time of dismissal.
Procedural fairness (depends on reason) – dismissal may still be unfair for a fair reason if fair procedure isn’t followed
ACAS Code – not legally binding, but persuasive
should be applied for conduct/capability dismissals
doesn’t apply to redundancy or end of fixed-term
doesn’t make automatically unfair just discretion for a 25% adjustment
doesn’t require grievance to be raised first, but failure to do so reasonably will likely result...
Buy the full version of these notes or essay plans and more in our Employment Law Notes.
A collection of the best LPC Employment notes the director of Oxbridge Notes (a former Oxford law graduate) could find in 2014 after combing through seventeen LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of Employment Law notes available in the UK this year. This collection of notes is full...
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