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

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1 Note to Candidates and Tutors: LEVEL 3 - UNIT 6 EMPLOYMENT LAW SUGGESTED ANSWERS - JANUARY 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 January 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. 1. Three examples include: SECTION A Right not to be unfairly dismissed (subject to qualification) Right to compensation when made redundant (subject to qualification) Right to a minimum wage 2. Under s86 of the Employment Rights Act 1996, an employee must give an employer at least one week s notice after they have been continuously employed for more than one month. However, if his contract provides for a longer period of notice, he is obliged to give the longer period. 3. Two duties employees owe their employers are the duty of obedience which involves obeying all reasonable and lawful orders that are within the scope of employment. Another is the duty to provide personal service which means the employee should not normally delegate his duties to others. 4. The s1 statement is required to include details of the parties to the contract and the date when employment began. 5. Wrongful dismissal is dismissal without notice; the losses include loss of wages and benefits for notice period 6. Age; disability; Gender reassignment; Marriage and civil partnership and race. 7. In order to bring a claim for unfair dismissal, Louise would have to establish that she was an employee and did not fall into any of the excluded classes. She would have to establish that she had two years continuous service or one year if she began work before April 2012 and that she was dismissed. Finally, Louise must bring her claim within 3 months of termination. Page 1 of 5

2 8. Reinstatement; re-engagement and compensation 9. The term mutuality of obligation in the case of Carmichael v National Power (1990) means there is an obligation on the part of an employer to supply work and an obligation on the part of an employee to accept work when offered. This has been referred to as the irreducible minimum necessary to establish a contract of service/employment Scenario 1 Question 1 SECTION B If Julie decides to discipline Anna, she must follow a disciplinary procedure. This can either be the statutory minimum set out in the ACAS Code of Practice or, if there is one, the contractual disciplinary procedure. There should be an investigative meeting with Anna, The specific allegations of misconduct must be set out in detail and in writing. Anna must be invited to a disciplinary meeting and told of her right to be accompanied and her right of reply. After the meeting, a decision must be made. That decision is likely to be a written warning Anna should be informed of her right of appeal. Ideally, the appeal should be heard by someone else and Anna should be informed of her right to be accompanied at the appeal hearing. Question 2(a) In order to bring a claim for unfair dismissal, a claimant must establish they are an employee. Here, Steve is described as an employee. A claimant must also establish that they have been continuously employed for at least two years. Here, Steve has only been employed for eighteen months so does not meet these criteria. The other qualification requirement is that a claimant has been dismissed which Steve could establish on the facts as Julia dismisses him summarily on the basis that she needs a qualified estate agent. All of these elements must be proven to establish eligibility which means that Steve cannot bring a claim for unfair dismissal. Question 2(b) Steve would have a claim for wrongful dismissal. This is a breach of contract claim and Julia is in breach of contract by failing to pay Steve his notice in circumstances where there has not been gross misconduct. Steve is entitled to statutory notice (under s86 ERA 199) of one week or his contractual notice if that is greater. Steve is entitled to at least one week s net pay and any pro-rated benefits. Question 3 In order to successfully defend a claim for unfair dismissal from Bob, Julia must first establish a potentially fair reason for dismissal. Here, she will argue that an allegation of theft is potentially gross misconduct. She must also establish that she acted with procedural and substantive fairness. As this is a case of gross misconduct, the test in BHS v Burchell applies. Julia must establish that she has a genuine belief that Bob is guilty; that she has reasonable grounds for that belief and that she has carried out as much investigation as is reasonable to establish the grounds for her belief. Here, Julia herself put a 50 note in the petty cash tin and discovered the next day that it was gone. A 50 note was found in Bob s desk drawer and he was asked about it Page 2 of 5

3 but refused to give any answers at all. In these circumstances, this was a reasonable investigation and Julia had good reasons to believe Bob was guilty. However, procedural fairness also requires invite Bob to a disciplinary hearing which she did not do Julia may argue that even if she had followed the correct procedure, it would have made no difference to her decision/would have been utterly futile to do so as per Polkey v AE Drayton. Finally, Julia must establish that she has acted with substantive fairness and that her decision to dismiss was within the band of reasonable responses set out in Iceland Frozen Foods v Jones. In conclusion, Julia should be able to successfully defend a claim for unfair dismissal. Question 4 Julia could include a restrictive covenant in the contract of a new senior estate agent to protect the business of Meadows. Whilst these clauses are prima facie void for restraint of trade, they can be used if Julia can establish that she is seeking to protect a legitimate business interest. The clause will prevent future employees from working for a competitor and this restriction must be reasonable in terms of its scope; in terms of the time period and in terms of the geographical area. Another clause she might include is a garden leave clause. This would give her the option to require an employee (usually a senior employee) to work their notice from home rather than coming into the office. All of the employee s obligations under the contract continue. The advantage of this clause is that it prevents the employee taking confidential information away with them or working elsewhere during notice period. Scenario 2 Question 1(a) Factors and tests indicating Ellie is an employee are: Control test Given instructions every morning Integration test Wears T-shirt with Raising the Roof printed on it Multiple/Economic reality test Van painted in company colours Length ofservice-5 years Has to be available for work Subject to company disciplinary policy Limited right of substitution Husband has been approved by employer Question 1(b) Factors and tests indicating Ellie is self-employed are: Multiple/Economic reality test Owns van Pays for running and maintenance costs Paid without deduction of tax and NI Page 3 of 5

4 No personal service, because Has right of substitution Question 1(c) The procedure that Ellie must follow to challenge the Final Written Warning is the appeal procedure. This is either set out in her contract or if not, the statutory procedure set out in the ACAS Code of Practice should be followed. She should set out her grounds of appeal in writing; she will then be invited to a meeting which should be chaired by more senior management, if possible. She has a right of representation at the appeal meeting. Question 2 An employee is entitled to be given a s1 statement/written statement of particulars under the ERA 1996 within 2 months of starting work. As Ian has been employed for 3 months, his employer should have supplied them. Ian should raise a grievance using the company grievance procedure. He can refer the matter to an Employment Tribunal for declaration of what should be included. If successful, he is entitled to compensation of 2 weeks pay. Question 3(a) Willow must establish that she has a physical or mental impairment. Her bad back would be a physical impairment. She must establish that it is long-term. Here, it has lasted over 15 months. She must also establish that her back has a substantial adverse effect on her ability to do day to day activities. Here, she still has pain when sitting still. She will meet criteria for a disabled person within the meaning of the Act. Question 3(b) The legal obligation owed by Raising your Roof is the duty of reasonable adjustments. This means that the employer must avoid any practices that put the disable person at a disadvantage; they must adapt physical features and provide auxiliary aids. Question 3(c) Here, the employer should consider if a specially adapted chair would help Willow Jones or whether she can work from home more. Scenario 3 Question 1(a) Maria may be able to bring a claim for indirect discrimination under s19 Equality Act 2010 on the grounds of sex which is a protected characteristic under s10. To establish this, she needs to show that the employer is operating a provision, criteria or practice (PCP). Here, Donatella has a practice of refusing to employ part-timers. It must also be proven that this PCP puts a particular group at a disadvantage. Here, the refusal to employ part-timers puts women at a disadvantage as they tend to be the group that wants part-time work as they tend to be the primary carers of children. Next, it must be established that the PCP puts this particular individual at a disadvantage. Here, Maria wants part-time work but this will not be considered by Donatella. Finally, Donatella may have a defence to the claim if she can establish that the PCP is a proportionate means of Page 4 of 5

5 achieving a legitimate end. There is no indication of a defence on the facts in this scenario. Question 1(b) The remedies for discrimination are set out under s124 Equality Act They include a declaration; here, it would be that Donatella s practice of never employing part-timers is discriminatory. The tribunal can also make a recommendation; here, it could be that training is required and/or a new policy towards part-time work is considered. Further, the tribunal can award compensation for injury to feelings subject to the Vento guidelines. Question 2 Thomas may be able to bring a claim of direct discrimination under s13 Equality Act 2010 on the grounds of sexual orientation which is a protected characteristic under s12. Thomas must establish that but for his sexual orientation, he would not have suffered less favourable treatment; here, the poaching of his clients who paid bigger tips. Thomas may also bring a claim for harassment under s26 Equality Act 2010 on the same grounds. Harassment is defined as the situation where there is unwanted conduct that violates dignity and/or creates an intimidating, hostile working environment. Here, the comment about big girls don t cry and the gossip with clients that gay people should not adopt amounts to harassment. Question 3 Under s136 Equality Act 2010, the claimant has the burden of proof initially but all they need establish is a prima facie case of discrimination and the burden then shifts to defendant to prove that discrimination did not take place Question 4 Ahmed may be able to bring a claim for victimisation 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 Helens Borough Council v Derbyshire. Here, Ahmed is threatened with the sack and/or damage to career if he supports Thomas claim against Maria for discrimination on the grounds of sexual orientation. Ahmed will bring the claim will be against Donatella s who, as the employer, is vicariously liable for Maria s actions. Question 5 Ahmed also has a potential claim under the Working Time Regulations This limits working hours of an employee to 48 per week over a 17 week period unless an opt-out is signed. Here, Ahmed has been working 60 hours a week for 6 months and there is no suggestion in scenario that he has signed an opt out agreement. Donatella s is therefore in breach of the Regulations. Page 5 of 5