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LPC Law Notes Employment Law Notes

Varying Terms Model Answer Notes

Updated Varying Terms Model Answer Notes

Employment Law Notes

Employment Law

Approximately 388 pages

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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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:

WRONGFUL DISMISSAL
IS THE PROPOSED CHANGE A BREACH OF CONTRACT?

  • Identify the term that is being varied

  • Check the contract – Is there a term that allows changes to be made?

    • If so, no breach occurs upon changing the term unless the employer implements such a term in an unreasonable way – that could potentially be a breach of the implied term of mutual trust and confidentiality which amounts to a repudiatory breach (United Bank v Akhtar)

      • If no term that allows flexibility – breach as the employer has altered the terms of the employment contract
IS THE BREACH SERIOUS ENOUGH TO AMOUNT TO A REPUDIATORY BREACH?

  • Pick out the facts that suggest it is serious:

    • Curtails social life

    • Makes childcare arrangements difficult

  • Pick out the facts that suggest it is not serious:

    • No change to overall hours

    • No change to shift pattern

    • No change to location

      • Conclude appropriately and state it is a question of fact for the tribunal

  • If the breach is deemed not to be sufficiently serious to be a repudiatory breach, it will still be a breach of contract. This means that the claimant can still bring a breach of contract claim in the civil courts. However the claimant must show his loss and this may be difficult as the claimant may not have lost anything (e.g. his hours may have just changed – same pay)
IF IT IS SUFFICIENTLY SERIOUS TO BE A REPUDIATORY BREACH…

  • Continue to work and accept the breach

  • Leave and do not bring a claim

  • Continue work under protest (i.e. raise a grievance as not to waive the breach)

  • Resign within reasonable time on the basis of constructive dismissal and claim unfair dismissal
REMEDIES

  • Net salary and benefits for notice period
OTHER CLAIMS
UNFAIR DISMISSAL

  • Use flowcharts and model answer

  • The employer doesn’t have to show that the change was essential; just that they had a good reason

  • It will usually in this case be for Some Other Substantial Reason

  • When it gets to procedure, answer the questions on the flowchart from WS3 – if the employer hasn’t done one of those things (such as consult the employees), advise them to do it now

  • Remedies:

    • If it is just a change of working hours for example there will usually be no loss

    • Also the employee has a duty to mitigate, and not accepting the new hours will contravene this duty

    • Therefore it is probable that the employee would only be awarded the basic award
INDIRECT DISCRIMINATION

  • Usually exactly the same as normal indirect discrimination

  • Follow flowcharts and model answer
OPTIONS
IN RELATION TO THOSE WHO HAVE BEEN INDIRECTLY DISCRIMINATED AGAINST

  • Do nothing

    • + No expenditure

    • – Will not fix problems

  • Impose new terms and conditions through the issuing of new contracts and see how they react

    • + employees might not claim

    • – WD and UD claims may be brought by employees

    • – They may sign up to the new contracts and then simply refuse to work under the new terms – this leaves the employer in a real mess as they then must decide whether or...

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