As a free service to the public, but specifically for employers and employees, this web page is dedicated to UK Employment Law. The information will, nevertheless, be useful to students, lecturers and researchers within the area of Employee Resourcing. Its main feature is the little-known, confusing and ‘taken-for-granted’ employment issues. This initial presentation is only a start and the page will be developed and updated gradually. I hope you will find it beneficial in averting or resolving ‘employer-employee relations conflict’. Prof. Dr. R. B. Crawford
Chief Consultant & Chief Executive
Human Resource & Organisational Development Consultancy (HRODC)
Contents What Is Employment Law? Employment Law is an inevitable feature in the Employer-Employee Relationship. The Employment Law seeks to regulate these relationships, averting or reducing repudiation of the employment contract, implicit or explicit. The Employment Act 2002, with its Statutory Instrument 2004, makes this relationship even more explicit. One of the things that it establishes is the minimum mandatory requirement for disciplinary and grievance procedure. The Employment Relations Act 2004 further clarifies the relationship between employees and their employers, reducing ambiguities relating to representation and bargaining units. What I am proposing, therefore, is that we need to give due regard to employment law. However, unlike what several people perceive, employment law is covered by different pieces of legislation and not a particular Act called Employment Act. So, for example, employment law incorporates legislation such as such as Equal Opportunities Act, The Race Relations Act 1976, strengthened by The Race Relations (Amendment) Act 2000 (UK Parliament, 2000) and The Race Relations Act 1976 (Statutory Duties) Order 2001 (UK Parliament, 2001) - which is a statutory requirements for public bodies produce a race equality scheme by December 2001. The disabled are given improved rights through The Disability Discrimination Act 1995 (UK Parliament, 1995) and The Disability Discrimination Act 1995 (Amendment) Regulations 2003 (UK Parliament, 2003). The Equal Pay Act, 1970, the Equal Pay (Amendment) Regulations, 1983, and the Sex Discrimination Act 1975 (Equal Opportunities Commission, 2000a), seek to address discrimination against female. The Sex Discrimination Act (SDA) 1975, which was amended and expanded in 1986, prohibits sex discrimination in employment, education and advertising or in the provision of housing or goods (Equal Opportunities Commission, 2001). The Employment Rights Act 1996 (UK Parliament, 1996) has not merely substituted the word ‘protection’ for the word ‘rights, in the Equal Pay Act 1970 but has strengthened its provision. Additional protection is afforded through the Sex Discrimination (Gender Reassignment) Regulations 1999. The Copyright (Computer Software) Amendment Act 1985, The Copyright Design and Patents Act 1988, and Registered Design Acts 1941 and 1988, The Registered Design Act 1949 and 1988, The Copyright Design and Patents Act 1988 might, for a number of reasons, be considered part of the Employment Law. This is because there are a number of issues in these Acts that are relevant to the ‘Employer-Employee Relationship’. As I expand this article, I will use a number of cases to illustrate why these aspects of legislation should be regarded as within the realms of Employment Law. One of the factors that these upcoming cases will establish is that there are a number of factors that determine who is a ‘genuine employee’ and who is not, and, therefore, the view that the courts are likely to take in the event of a dispute between an organisation and a worker - see for example Crawford (2002), On-Line Learning And Lecturers' Intellectual Property Rights: A Legal-Empirical Analysis Of The European And Asian Implications - Research Paper (Research Article) (Research Article)23 - or Crawford (2003), The UK’s Growing Demand For Computer Mediated Distance Education And The Legal Basis Of Their Creators - Research Paper (Research Article) (Research Article)28. Frustration of Contract: An Illustrative Guide 'Frustration of contract' is possibly one of the least understood aspects of UK Employment Law, and has been misinterpreted by some Employment Tribunals. The first clarification of 'frustration of contract' is that it does not constitute dismissal (see e.g. Pitt, 1994). Before assuming frustration of contract, one needs to make an assessment of the situation based on the facts that are relevant to the situation. Your decision or assumption, in this regard, might be aided by the illustrative cases, below. A simple but realistic definition of ‘frustration of contract’ might be: A situation that occurs in the ‘employer-employee relationship’ that mitigates against the effective continuance of this relationship, when neither the employer nor employee is at fault.
In this case, the termination or cessation of paid employment has not been the intention of the employer or employee. Lewis (1997) aptly regards frustration of contract as 'automatic termination'. Under normal circumstances, the employer would be willing to continue to provide the employee with remunerative tasks or assignment and the employee is willing but unable to work effectively. However, without closer examination, there appears to be a stalemate between the employer and the employee, each perceiving to have a case against the other. However, in reality, none does. Because a number of cases of frustration of contract results from illness, some employers attempt to disguise disability discrimination as frustration of contract. If an employee is ill, then a test of whether frustration of contract might be: The possibility of the employee's full recovery; The possibility of his or her being redeployed; or Whether the situation can be resolved if the employer makes reasonable adjustment to the work or work station - as a means of supporting the worker's effective role performance. This is a provision entrenched in the Disability Discrimination Act 1995.
As case #8 (to be added shortly) will illustrate, in the event of illness the employee is entitled to remain certified ill until his or her sick leave entitlement has been fully utilised. Therefore, frustration of contract cannot be assumed until after that period. Please note, however, that sick pay entitlement differs from one organisation to another but in most large organisation the entitlement is usually six months on full pay and 6 month at half pay. It should also be noted that employees are only entitled to statutory sick pay, unless the organisation is contractually obliged to pay it or had intended to do so, by virtue of previous or current practice. There are a number of old and recent cases to illustrate these two points. However, there are reasons other than illness that might result in the frustration of contract. These include: Confinement or 'isolation'. These are exemplified by the employee being confined to prison, or as the saying goes, 'At Her Majesty's Pleasure' (see cases 5 & 6). The worker might also be stranded or 'marooned' by acts of nature, war or civil unrest. Displacement through relocation or the cessation of 'work activities'. If an organisation is forced to relocate, in which case this is not a choice but an act of survival, and an employee is willing but unable to continue to work, from the new location, then frustration of contract occurs. However, there are contractual problems if there was a stipulation of the physical location of the job. Rover found this a problem, part of the reason that resulted in its demise (in its previous life). Workers had contracts that specifically stated the location of their place of work. It meant that some workers were passing plants that were understaffed going to factories that had excess employees. While a student member of the HR team worked on a 'Postcode Redeployment Strategy', with a lucrative relocation incentive, the company slipped closer to receivership.
As a later case (to be added shortly) illustrates, an employee might have a valid employment contract but there is cessation of work at his or her posting. He or she is still willing to work but the employer is unable to redeploy him or her. This represents a clear case of frustration of contract but had been missed by the Employment Tribunal
Case 1 The Issue of ‘frustration of contract’ is not new in legal terms. In fact, Lockton (`2003) and Pitt (1994) date it as far back as 1876, in the case of Pousard v. Spiers & Pond. Poussart In this instance, Pousard, an opera singer, sued the employer for breach of contract having been replaced because of illness. Although the illness lasted for less than the one month’s duration of the performance, the only possible replacement would only agree to take the part if for its entire duration. The court ruled that the contract had been frustrated. Case 2 Hart, in the case of Hart v. Marshall & Sons (Bulwell) Training Institute [1977] (Lockton, 2003), was a night service fitter but was ill for 20 months. He was replaced, despite sending his employer regular sick note. The Employment Appeals Tribunal ruled that because he was a key worker, his employment had been frustrated by illness. Case 3 In Hebden v. Forsey & Sons [1973], (Lockton, 2003), Hebden, one of two sawyers, had been away from work for almost two years. He sent his employer regular sick note and his employer agreed that he would not be able to work effectively until he had fully recovered. He was, nevertheless, replaced. The Employment Tribunal held that the contract had not been frustrated. Case 4 In Maxwell v. Walter Howard Designs Training Institute (Selwyn, 1991), Maxwell, a cabinet maker, was away from work for almost 2 years, sending regular sick notes to his employer. He was still replaced. The Tribunal ruled that the nature of his employment was of such that he did not have to be replaced permanently. Therefore frustration of contract did not occur. Case 5 In the case of Hare v Murphy Bros Training Institute (1974), there was uncertainty over why the contract of employment had been terminated. While Stephenson held that the employment was frustrated by imprisonment, Stephenson stated only that imprisonment ended the contract (Duddington, 2003). Case 6 In Shepherd and Co. Training Institute. v Jerrom (1986), the Court of Appeal clarified that frustration of contract can be assumed, where an employee is imprisoned (Duddington, 2003). Case 7 (To be detailed) Case 8 (To be posted) Click to view HR Research Papers (Research Articles) Instant Dismissal or Summary Dismissal? Before attempting to define this concept, I would like to remark that the legal terminology of summary dismissal is thought by some prominent practitioners to be nonexistent. This is mainly because they are accustomed to the term 'instant dismissal'. Rather, if there is anything that is nonexistent it would be 'instant dismissal'. Recently, a senior academic colleague noticed an examination question requiring postgraduate Employee Resourcing students to distinguish between summary and instant dismissal. He claimed that there was no such term as summary dismissal. Because he was the second reader of the paper, before it was sent off to the external examiner, it was necessary for me to convince him that it did exist. Fortunately, for me, I had an appropriate text handy. Grasping the text, page-marked, from me, he read with twisted brow. Quite embarrassed at his misguided confrontation, he walked away slowly without saying a word. The similarity between the terms is that they mean dismissal without notice. To distinguish between them, 'instant dismissal' is illegal but 'summary dismissal' is legal. We might assume instant dismissal or summary dismissal based on two fundamental questions: Is the conduct of the employee of such that it would have been unreasonable to expect the employer to continue his or her employment for a period after which termination becomes effective? What procedure has been applied to the dismissal without notice? For example, had the statutory provision of the Employment Act 2002 for grievance and disciplinary procedure been applied? (see e.g. Willey, 2003).
Employers might assume summary dismissal but the decision of an Employment Tribunal or Employment Appeal Tribunal might either uphold or declare a 'dismissal without notice' unlawful. In this case, it becomes instant dismissal or 'unlawful summary dismissal'. |
