Under ERA 1996, an ’employee’ is defined as
This assignment will see the employment place of Mr Witanga. It will see his application to the employment court and whether or non it is likely to be successful. It will see some of the statements that the respondents ( ugly duckling ) may raise to allege his claim. Finally the following stairss that are taken in tribunal proceedings will be considered, albeit briefly.
For unjust dismissal legal power to be invoked the Mr Witanga must foremost fulfill a figure of measure uping conditions, the most import of which, is that he or she has been dismissed. Under subdivision 96 ( 1 ) of the Era 1996:
….. an employee is treated as dismissed by his employer if, and merely if,
- the contract under which he is employed is terminated by the employer, ( whether with or without notice )
- he is employed under a contract for a fixed term and the term expires without being renewed under the same contract, or
- the employee terminates the contract under which he is employed ( with or without notice ) in fortunes in which he is entitled to end it without notice by ground of the employer’s behavior
Therefore Mr Witanga must show that he falls within one of these classs in order that he can claim unjust dismissal. It is of class likely that he will claim that he falls into class degree Celsius as being entitled to end his contract because of his employers conduct. In such fortunes it will non be necessary for the employee to inform the employer, at the clip of the expiration, of his or her ground for go forthing the employment ; the trial is merely one of causing, that is to state, was the employee’s going caused by the employer’s behavior? [ 1 ] The Court of Appeal in Western Excavating ( ECC ) Ltd V Sharp [ 2 ] imposed a contract trial. Lawton LJ found it neither “necessary [ nor ] advisable to show any sentiment as to what rules of jurisprudence operate to convey a contract of employment to an terminal by ground of an employers’ conduct’ and suggested that it would be a “waste of legal learning” for courts to use much clip and attempt analyzing the jurisprudence of repudiatory breach. The voluminous instance jurisprudence that has developed around subdivision 95 ( 1 ) ( C ) merely indicates that the fortunes giving rise to a constructive dismissal are every bit varied as those of employment itself. A serious breach by the employer of the responsibility to keep common trust and assurance, which is portion of the mutual responsibility of co-operation will usually be regarded as sufficient. Conduct falling into this class has included subjecting the employee to abusive and contemptuous linguistic communication [ 3 ] ; declining to look into a justified ailment associating to wellness and safety [ 4 ] ; doing an uncorroborated allegation against the employee [ 5 ] ; take a firm standing without good cause that the employee should undergo a psychiatric scrutiny [ 6 ] ; randomly freakishly and inequitably singling out an employee for an inferior wage rise to that received by other employees [ 7 ] ; denying the employee entree to the company’s premises by altering he locks and stating clients that the employee no longer worked for the company [ 8 ] ; leting an employee to be subjected to sexual torment [ 9 ] ; composing a deceptive mention for a prospective employer [ 10 ] ; and suspending the employee in response to uncorroborated allegations of kid maltreatment [ 11 ] . However, the impression of mutual co-operation has so far stopped short of enforcing an duty on an employer to offer an one-year par rise or an offer of sing. On the other manus, an effort by the employer one-sidedly to change the express contract [ 12 ] footings will about surely be regarded as renunciation [ 13 ] .
There must be an immediate menace to the express contract footings for the employer to hold committed renunciation ; it may non be plenty for the employer simply to voice a difference of sentiment about the contract footings, even if it should later turn out that the employee was right. This is an application of the rule, enunciated by the House O Lords in Woodar Investment Development Ltd V Wimpey Construction UK Ltd [ 14 ] that an averment of a contractual right, unless it was made in bad religion, does non amount to repudiation simply because it “has proved to be incorrect in law” . For the averment to amount to a renunciation the guilty party must “ [ evince ] an purpose non to be bound by the contract” . Similarly “ [ T ] he mere fact that an employer is of the sentiment, albeit erroneously, that there is something to be discussed with his employee about the contract is a really long manner from the employer taking up the attitude that he is non under any fortunes at all traveling to be bound by it.”
Therefore it can be argued that Mr Witanga was constructively dismissed when the one-sided alteration was made to his contract. The continued behavior of the parties, in so far as Mr Witanga was paid monthly at the same clip every month, meant that this was the footing for payment in the contract. The add-on into the new contract, that Mr Witanga, signed constituted a one-sided alteration in the footings of the contract, as it allowed Ugly Duckling to pay him on completion of the movie, which was non portion of the original contract. If this is the instance so the effectual day of the month of expiration will be the day of the month at which this contract was presented to him. There will be no ready premise of release or estoppel in instances where the employee’s vacillation is due to ignorance of his or her rights [ 15 ] .
There are other conditions that Mr Witanga must fulfill in order to get down a claim at the employment court. He must show that he was employed as an employee by Ugly Duckling Studios.
Under ERA 1996, an “employee” is defined as an “individual who has entered into or works under….a contract of employment” , and a “contract of employment” is defined, in bend, to intend “a contract of service or apprenticeship, whether express or implied, and ( if it is express ) whether unwritten or in composing. [ 16 ] ”
The definition of employee is nevertheless by no agencies a simple construct and can non be determined merely by the being of a contract or by the label that the parties place on their several places. In O’Kelly v Trusthouse Forte PLC [ 17 ] the Court of Appeal decided by a bulk that the application of the legal standards for placing a contract of employment was a “question of assorted jurisprudence and fact” to which several correct replies are possible.
In Carmichael v National Power PLC [ 18 ] the bulk sentiment of Lord Irvine and Lairg LC was that the building of an employment contract could merely be a inquiry of pure jurisprudence if the parties had intended the written paperss go throughing between them to be the sole beginning of their understanding. In the position of Lord Hoffman, who gave a concordant sentiment, whether the parties had such an purpose in a given instance was itself a inquiry of fact. In the building of employment contracts, it would usually be unfastened to a tribunal to take into history the behavior of the parties come ining into the relationship of employment every bit good as their subsequent apprehension of what the contract required them to make. Case of wholly written contracts of employment would hence be atypical.
It would look that “Ugly Duckling” have attempted to make a contract with Mr Witanga in order to label him as an independent contractor nevertheless in McMeechen v Secretary of State for Employment [ 19 ] Mummery LJ noted that if the “reality” is one of employee position, the parties can non overrule this by “choosing” to follow self-employment in order to avoid the impact of revenue enhancement and protective statute law or for any other intent: a “statement that … [ a worker ] supplies [ services ] as a self employment worker is non conclusive of his statues, since it has been said many times that whether person is an employee is a affair of analyzing all the rights and duties created by the contract. It is for the tribunal and non for the parties to find whether a contractual link can be inferred from the regular pattern of work being carried out in return for payment, or whether the worker’s position is that of a “volunteer” and hence outside the protection of labour jurisprudence.
In the instance of Ferguson v John Dawson and Partners ( Contractors ) Ltd [ 20 ] Megaw LJ said that “a declaration by the parties, even if it were incorporated in the contract, that the workingman was to be, or was to be deemed to be, freelance, an independent contractor, ought to be entirely disregarded – non simply treated as non being conclusive- if the remained of the contractual footings, regulating the worlds of the relationship, showed the relationship of employer and employee.”
However in Calder V H Kitson Vickers & A ; Sons ( Engineers ) Ltd [ 21 ] Ralph Gibson LJ said that “a adult male is without inquiry free under the jurisprudence to contract to transport out certain work for another without come ining into a contract of service. Public policy has nil to state either way.”
It will non automatically be the instance that Mr Witanga is an independent contractor because he pays his ain revenue enhancements and national insurance. This is non fatal to an employer/employee relationship. In Renninson 5 Minister of Social Security [ 22 ] Bridge J saw through a strategy to depict hebdomadal paid secretarial workers as freelance for revenue enhancement and national insurance intents, keeping that they were employees and apt to pay Class 1 national insurance parts. Similarly, in Young & A ; Woods LTD V West [ 23 ] the Court of Appeal held that the applier was entitled to claim unjust dismissal on the evidences that “in reality” he had a contract of employment, and that an effort to show him as self-employed was a fake. Therefore the tribunal will see the grounds as to why the parties sought to set up payment this way- it is true to state that the lone ground for the being of this agreement was to suit Mr Witanga’s petition, and to enable him to obtain cheaper rates for income revenue enhancement and therefore his primary ground was non that he wished to obtain self employed position.
The other trial to see whether or non a contract of employment exists is to see control. In the instance of Yewens v Noakes [ 24 ] it was held that: “a retainer is a individual who is capable to the bid of his maestro as to the mode in which he shall make his work” .
In the instance of Ready Mixed Concrete ( South East ) Ltd v Minister for Pensions and National Insurance [ 25 ] it was held that control included the power of make up one’s minding the thing to be done, the agencies to be employed in making it, the clip when and the topographic point where it shall be done. All these facets of control must be considered in make up one’s minding whether the right exists in a sufficient grade to do one party the maestro and the other his servant.” Similarly, in McMeechan v Secretary of State for Employment [ 26 ] an understanding under which an bureau worker agreed “to fulfil the normal common jurisprudence responsibilities which an employee would owe to an employer so far as they are applicable” , including responsibilities of fidelity, confidentiality and obeisance to instructions, was for that ground held more likely to give rise to a contract of employment between himself and the bureau. Control has besides late been invoked to back up a determination that the user of an bureau worker’s labor may presume the position of his employer [ 27 ] . These instances demonstrate that while the control which exists under modern labour market conditions may be less personal and more bureaucratic in nature than that identified in the 19th century Judgess it is arguably no less of import as a characteristic which separates the employment relationship from other signifiers of the proviso of labor. It is surely true from the information that has been provided to us that Mr Witanga was, after having specific preparation, instructed on which theoretical accounts he should construct for the manager. However the respondent ( Ugly Duckling ) could reason that he was left to his ain devices and therefore it was wholly up to him how he created the theoretical accounts.
In Beloff V Pressdram Ltd [ 28 ] a extremely paid journalist was unable to reason that, given her high position, she could non be regarded as holding a contract of employment, even though she worked full clip for the newspaper and was treated as an employee for revenue enhancement and national insurance intents. Harmonizing to Ungoed-Thomas J, “the greater the accomplishment required for the employee’s work, the less important is control in finding whether the employee is under a contract of service.” This would back up Mr Witanga’s statement that he is in fact an employee, as it would look that his function requires a great trade of accomplishment and is really specialized, for this ground the control trial is likely to be of small importance.
In Lee Ting-Sang V Chung Chi Keung [ 29 ] Lord Griffiths said that there is a difference between “a skilled artisan gaining his life by working for more than one employer as a an employee… and a little man of affairs embarking into concern on his ain history as an independent contractor with all its attender risks.” In this instance the applier neither hired his ain assistants nor supply his ain equipment ; furthermore, “he had no duty for investing in, or direction of, the work on the building site, he merely turn up for work and chipped off concrete to the needed deepness upon the beams indicated to him on a program by the [ employer ] … . It is true that he was non supervised in his work, but this is non surprising, he was a skilled adult male and he had been told the beams upon which he was to work and the deepness to which they were to be cut and the work was measured to see that he achieved that consequence.
Although see the instance of Hall v Lormier [ 30 ] , where the respondent was a skilled telecasting technician who worked for around 20 separate companies on a series of short-run battles. He was held to be freelance and hence indictable to income revenue enhancement under Schedule D. Harmonizing to Nolan LJ:
….the inquiry, whether the person is in concern on his ain history, though frequently helpful, may be of small aid in the instance of one transporting on a profession or career. A freelance writer working from place or an histrion or a vocalist may gain his lifes without any normal furnishings of concern. The most outstanding characteristic to my head is that Mr Lorimer customarily worked for 20 or more production companies and that the huge bulk of his assignments… . Lasted merely for a ingle day”
In Lane V Shire Roofing Co ( Oxford ) Ltd [ 31 ] the Claimant was a edifice worker who was hired by the suspect employer to transport out a re-roofing occupation for which he was to be paid harmonizing to a day-to-day rate. The suspect “considered it prudent and advantageous to engage for single jobs” . While transporting out the work, the Claimant fell and was injured. It was held that he was an employee for the intents of the occupation, and so was owed the common jurisprudence responsibility of attention with respect to his wellness and safety. Harmonizing to Henry LJ, using the trial of economic world, the “business” involved in the work was that of the suspect and non the claimant’s.
In the instances of Airfix Footwer Ltd v Cope [ 32 ] and Nethermere ( St Neots ) Ltd V Taverna and Gardiner [ 33 ] the tribunal dealt with the place of homeworkers. In Nethermere Dillion LJ found it “unreal to say that the work in fact done by the applications for the company over the non inconsiderable periods… . Was done simply as a consequence of the force per unit areas of market forces on the appliers and the company and under no contract at all” and Stephenson LJ could non see “why tenable outlooks of go oning prep should non be hardened or refined into enforceable contracts by regular giving and taking over periods of a twelvemonth or more, and why outworkers should non thereby go employees under contracts of service, like those making similar work in a mill.
By contrast, in Clark v Oxfordshire Health Authority [ 34 ] the Court of Appeal held that there was no grounds of a planetary contract of employment in the instance of a nurse who, under an agreement with the wellness authorization, was offered work every bit and when the demand arose, but who otherwise had no regular working hours. This can be contrasted with Mr Witanga’s place in which he worked regular hours and took regular tiffin interruptions.
In the instance of Express & A ; Echo Publications Ltd v Tanton [ 35 ] the tribunal considered a peculiar term of a contract. The term in inquiry, under which the employee has the right to put up another individual to provide the labor services in inquiry, on the face of it clearly indicated a deficiency of mutualness of duty. However, in proposing that the presence of such a term was, in itself, incompatible with employee position, the Court of Appeal failed to hold respect to the standard-form character of the footings in inquiry.
Harmonizing to Lord Wright in Montreal Locomotive Works, “in many instances the inquiry can merely be settled by analyzing the whole of the assorted elements which constitute the relationship between the parties [ 36 ] .”
Mackenna J in Ready Mixed Concrete ( South East ) Ltd V Minster for Pensions and National Insurance said that:
“A contract of service exists [ when ] three conditions are fulfilled. ( I ) The Servant agrees that, in consideration for a pay or other wage, he will supply his ain work and accomplishment in the public presentation of some services of his maestro ( two ) He agrees, expressly or impliedly, that in the public presentation of that service he will be capable to the other’s control in a sufficient grade to do that other maestro ( three ) The other commissariats of the contract are consistent with it being a contract of service”
In O’Kelly v Trusthouse Forte [ 37 ] the employment court produced a list of no fewer than 18 different relevant factors, some of which were considered consistent with the being of a contract of employment. These included the deficiency of any fiscal investing by the appliers in the company’s concern ; the payment by the company of holiday wage and an incentive fillip paid on past service ; the presence of control by the employer ; and the fact that they were paid hebdomadally in arrears with revenue enhancement and national insurance deducted at beginning.
Harmonizing to Lord Justice Peter Gibson, the first undertaking of a tribunal or court is to place the contract footings. If it appear that a term is present which is incompatible with employee position, there is no demand to travel farther consider and see the scope of factors discussed supra. This attack would promote of the function of the formal contract term in finding issues of position, at the disbursal of the more full rounded position of the deal entered into by the parties which is inexplicit in the trial of economic dependance.
Therefore in decision and in consideration of all of the assorted trials that have been proposed by the tribunals it would look that Mr Witanga satisfies the trial and can be deemed an employee for the intents of conveying a claim for unjust dismissal.
The 2nd demand of the employment court is that the employee must hold had continuity of employment of non less than one twelvemonth at the clip of the dismissal, the “effective day of the month of expiration.If Mr Witanga succeeds on his constructive dismissal claim the effectual day of the month of expiration will be deemed to hold been the twenty-four hours at which he handed in his notice. The inquiry of equity in relation to constructive dismissal is another affair for consideration. This will be considered independently to the potentially just grounds for dismissal and the equity of these issues, this is a separate issue and one that will be considered in item below.
Constructive dismissal asks whether the employer’s behavior was repudiatory. It is a contractual trial and, as with any other dismissal, the employer’s breach of contract is non what the thought of fairness Centres on. However it is rather unusual for an employment court to be convinces that a constructive dismissal was however just in all the fortunes. For case in Cawley V South Wales Electricity Board [ 38 ] , an employee was found urinating out of the dorsum of a SWEB new wave as it travelled down the chief street. Apparently the employee had vesica problem and the whole incident arose out of a practical gag being played by his workmates. The employee was at firs dismissed but on entreaty this was turned into heavy demotion. He complained hat, although the demotion was allowed for in his contract, its execution was an maltreatment of power. He resigned and claimed that he was below the belt constructively dismissed. The tribunal found constructive dismissal. On entreaty it was found that equity and constructive dismissal were really much intertwined and hence most constructive dismissals will be unjust. The major exclusion to this is when constructive dismissal arise because of concern rhenium administration, as is the instance here and every bit will be discussed in more item below. Here the two inquiries of serious breach an equity are rather distinguishable.
The issue of equity will necessitate to be assessed in much the same manner as any other sort of expiration it will non do any difference that Mr Witanga is claiming that he was constructively dismissed. The five just grounds for dismissal are contained with S98 of ERA 1996 and it would look that Mr Witanga will non fall into either of the first four classs and the lone ground that this can be seen as potentially just ground would be those grounds outlined under ( vitamin E ) and that is the class of some other significant ground. [ 39 ] The most common signifier of “some other significant reason” is that of concern reorganizations, this can be argued by the respondent, to possibly be the instance here.
Employers often wish to reorganize parts of the concern in order to increase efficiency and this can affect a alteration in working forms or methods as seen here with the alteration of payment methods. An employee who refused to collaborate and who resigns in the face of such alterations may hold a claim for unlawful repudation.
If the alteration does represent a breach of contract the employer may still reason that the dismissal was non unjust because of the concern reorganization. The court is non allowed to outguess the employer’s concern determination, so the employer can set up the just ground rather easy. In the instance of Hollister v National Farmers Union [ 40 ] it was held that all that was needed was a “sound concern reason” , or even simply that the alteration was good to the operation of the company. A mere averment that there is a concern ground is non adequate, but employers are merely expected to demo the factual grounds as the footing for doing their concern determination.
The inquiry of equity so has to be decided, as with any unjust dismissal claim, the mode in which the employer handles the dismissal is still really of import. [ 41 ] The court will therefore seek to happen out whether the reorganization was effected in a sensible manner. One of the troubles that crops up here is that merely because the employer is moving moderately in seeking to implement the alteration it does non automatically follow that the employee is moving unreasonably in declining to accept it. All mode of grounds may be relevant. The court will therefore demand to see the followers facets when making its determination:
- whether the employer was consulted with the employee and any employee representatives
- Whether the employer considered alternate classs of action
- Whether the footings were those which a sensible employer would offer
- What is the balance of advantages and disadvantages to both parties ;
- Whether the bulk of employees have accepted the alteration.
No 1 factor is given greater weight than another and the whole context of the reorganization needs to be examined. [ 42 ] Using these issues to the current scenario it seems likely that this will non be a just dismissal. The grounds for this are that foremost at no clip was Mr Witanga consulted about the demand to re organize the concern. Equally far as we are cognizant the employer considered no other options and this was merely a articulatio genus dork reaction to a seminar that he had attended. It would non look sensible that an employer would offer such footings, given that this would ensue in the employee waiting 10 old ages for his money. There are no advantages to the employee whatsoever. Finally, it is extremely improbable that the bulk of employees would hold accepted the alteration. Therefore on the footing of the facts as presented it would look that the dismissal was non just and hence can non be considered to be a potentially just ground.
Above has been discussed the assorted statements that may be raised by both Ugly Duckling and by Mr Witanga. It is non certain whether or non Mr Witanga will win his claim. Briefly below the process following the lodgment of the ET1 will be considered. The following phase will be for the tribunal office to direct to the employer a standard missive ET2 called a notice of arising application and with this will be enclosed the ET1, a clean signifier of notice of visual aspect an explanatory brochure. This pattern sometimes means that he employer is falsely identified, possibly utilizing a trading name that has no standing to reply pleadings at all. Such a job is easy resolved subsequently on and the individuality of the employer is most frequently amended by consent at the start of the hearing.
Having received these documents from the tribunal office the employer must now come in an visual aspect which must be returned to the tribunal office within 21 yearss of reception. Following reception of all certification the court may or may non make up one’s mind to keep a preliminary hearing. Such a hearing will cover with issues about the legal power of the court in a peculiar instance or other such issues. The two issues which have most frequently been dealt with in this manner are whether the arising application was submitted in clip and whether the applier has sufficient service.
Following such hearings the following phase that may or may non happen is that the court may or may non make up one’s mind to keep a Pre-trial hearing. Either party can besides use for such a hearing. Following his phase there may be petitions for farther and better specifics. Then the following phase is to set up for find and review of relevant certification. The court will so cite any informants that they may wish to name, one time this is done a day of the month will be set for the hearing and the parties will so go to the court where a determination will be reached by the court.
Employment Rights Act 1996
Adams V Charles Zub Associates Ltd [ 1978 ] IRLR 551
Airfix Footwer Ltd v Cope [ 1978 ] ICR 1210
Beloff V Pressdram Ltd [ 1973 ] 1 ALL ER 241
Calder V H Kitson Vickers & A ; Sons ( Engineers ) Ltd [ 1988 ] ICR 232
Carmichael v National Power PLC [ 2000 ] IRLR 43
Cawley V South Wales Electricity Board [ 1985 ] IRLR 89
Clark v Oxfordshire Health Authority [ 1998 ] IRLR 124
Express & A ; Echo Publications Ltd v Tanton [ 1999 ] IRLR 367
Hall v Lormier [ 1994 ] IRLR 171
Industrial Rubber Products 5 Gillion [ 1977 ] IRLR 389
Ferguson V John Dawson and Partners ( Contractors ) Ltd [ 1976 ] 1 WLR 1213
Hollister v National Farmers Union [ 1979 ] ICR 542
Lane V Shire Roofing Co ( Oxford ) Ltd [ 1995 ] IRLR 493
Lee Ting-Sang V Chung Chi Keung [ 1990 ] ICR 409
Motorola Ltd v Davidson [ 2001 ] IRLR 4
McMeechen v Secretary of State for Employment [ 1995 ] IRLR 461
Nethermere ( St Neots ) Ltd V Taverna and Gardiner [ 1984 ] IRLR 240
O’Kelly 5 Trusthouse Forte PLC 1983 ] ICR 728
Peyman v Lanjani [ 1985 ] CH 457
Polkey v A E Dayton Services Ltd
Ready Mixed Concrete ( South East ) Ltd v Minister for Pensions and National Insurance 1968 ] 2 QB 497
St John of God ( Care Services ) Ltd V Brooks [ 1992 ] IRLR 546
Yewens v Noakes ( 1880 ) 6 QBD 530
Young & A ; Woods LTD V West [ 1980 ] IRLR 201
Bowers J & A ; Honeyball S, ( 2002 ) “Bowers and Honeyball Textbook on Labour Law” , Oxford University Press
Dudington J, ( 2003 ) “Employment Law” , Pearson Higher Education
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