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PART ONE
QUESTION 2
PART A: The Process of Bringing a Legal Claim against an Employer
Memo: Understanding the Process of Bringing a Legal Claim against an Employer in the U.K.'s
Employment Tribunal System
To: All Staff Members
From: [Your Name]
Date: [Insert Date]
Subject: Navigating the Employment Tribunal System in the U.K.
Dear Team Members,
In light of ongoing concerns about employment disputes and the increasing delays in the Employment
Tribunal system, this memo aims to explain the legal procedures involved in bringing a claim against an
employer in the U.K.
The first and most critical step in resolving employment disputes is to fully exhaust all available internal
grievance procedures within the organization (Cloke and Goldsmith, 2011). This entails raising the issue
with your employer in a formal manner. This step is crucial, as failing to comply with internal procedures
could adversely affect subsequent legal proceedings. After internal avenues have been fully explored, the
following mandatory step involves participating in early conciliation through the Advisory, Conciliation
and Arbitration Service (ACAS). This service acts as an intermediary, facilitating conversations between
the aggrieved party and the employer to resolve the issue without legal action (Urwin and Gould, 2016).
Should the ACAS process fail, the service will issue a certificate, permitting the aggrieved party to
proceed to the Employment Tribunal.
Upon obtaining the ACAS certificate, you will be required to submit an Employment Tribunal claim using
form ET1, and it is crucial to adhere strictly to the submission deadlines—typically, claims must be made
three months minus one day from the date of the incident in question. After submitting the ET1 form,
employers are afforded 28 days to respond via an ET3 form, detailing their version of events and
outlining their legal defence (Marson, 2014). If the employer fails to respond within this time frame, the
Tribunal may issue a default judgment in favour of the claimant. It is worth noting that even after these
forms have been submitted, ACAS continues to offer conciliation services, potentially leading to last-
minute settlements before a hearing.
In more complex or contentious cases, the Employment Tribunal may decide to hold a preliminary
hearing. The purpose of this hearing is manifold: to clarify specific issues, set timetables for the
upcoming proceedings, and provide general directions for both parties (
An Empirical Study of
Employment Arbitration: Case Outcomes and Processes - Colvin - 2011 - Journal of Empirical Legal
Studies - Wiley Online Library
, no date). Following the preliminary hearing, a discovery and document
exchange process occurs. This step ensures full transparency between the two parties, allowing them to
exchange all documents relevant to the case. Both parties are expected to comply fully with this
procedure, as failing to do so could have a detrimental impact on the Tribunal's final decision.
After the document exchange, witness statements are prepared by both parties, outlining the
testimonies of all hearing witnesses. These statements are crucial evidence that will be used in the
Employment Tribunal hearing. Both sides can cross-examine the other's witnesses, which requires the
statements to be precise, factual, and free from speculation (Doak, McGourlay and Thomas, 2015). Once
this stage is complete, the Employment Tribunal hearing commences. Here, a judge and two lay
members typically hear the case, with both parties presenting their evidence and arguments. The
Tribunal will weigh all the information before rendering a judgment.
The judgment is a comprehensive document detailing the Tribunal's findings, legal reasoning, and final
decision (Venter, 2016). Should the claimant be successful, the judgment will also specify the remedies
awarded, which could range from monetary compensation to reinstatement or re-engagement in the
organization. Although the Tribunal's decision is generally considered final, it may be appealed under
specific conditions, such as if there are apparent errors in law. These appeals are complex and should be
undertaken only after careful consideration.
Best regards,
[Your Name]
PART B: Critical Assessment of the Effectiveness of Employment Dispute Resolution
Mechanisms in the U.K.
Introduction
An employment tribunal is a legal body or court that handles disputes between employers and
employees regarding various employment-related matters. The government typically establishes these
tribunals in many countries to provide a fair and impartial forum for resolving employment disputes
without needing a full-scale court trial. Employment tribunals were initially introduced in the United
Kingdom as a novel alternative to the conventional court system, offering a quick, cost-effective, and
informal means of resolving disputes between employers and employees (
CIPD | Employment Tribunals
| Factsheets
, no date). However, with a constant shift in the legal framework and the unexpected
challenges presented by the COVID-19 pandemic, there has been a profound alteration in how these
tribunals function. This report offers a critical analysis, shedding light on the evolving nature of
employment tribunals, their formalistic drift, and the implications of these changes on their efficacy.
The Nature and Role of Employment Tribunals
Conceived initially as a democratic solution to the inaccessible legal systems, employment tribunals were
to function as a "court of equity" where justice could be meted out without the stringent protocols of
civil courts (Strong, 2020). Over the decades, however, their role has expanded considerably to include
not just statutory employment issues but also common law claims, such as those involving discrimination
and unfair termination. While this extended jurisdiction enhances their utility, it also brings
complications(
Past As Prologue: Arbitration as an Early Common Law Court by S.I. Strong :: SSRN
, no
date). Specific issues, particularly those involving criminal conduct, are beyond their purview and still
necessitate traditional civil or criminal court intervention. This selective jurisdiction thus limits their all-
encompassing role in employment dispute resolution.
Formality and Legalistic Proceedings
When first instituted, one of the defining characteristics of employment tribunals was their informality.
They were designed to be navigable even by those without legal expertise, thus enhancing accessibility
(Latreille, 2017). However, the ever-increasing complexity of employment law has forced an escalating
reliance on legal representation. The Employment Tribunals and the Employment Appeal Tribunal Fees
Order of 2013 made notable changes, introducing fees and procedural adjustments to refine and hasten
the process(Smith, 2023). Unfortunately, these changes have been widely criticized for tipping the scale
in favour of employers. These reforms, although projected as efficiency measures, inadvertently made
the system less accessible by raising the financial and procedural barriers for potential claimants.
The Impact of COVID-19 and ACAS's Role
The already strained pandemic has dealt an additional blow by the COVID-19 pandemic, exacerbating
pre-existing inefficiencies and causing significant delays (
Covid court backlog delays justice - The
Washington Post
, no date). The backlog has grown, prolonging the time it takes for a claim to be resolved
and thus compromising the original intent of speedy justice. The Advisory, Conciliation, and Arbitration
Service (ACAS) has been thrust into a more active role. While ACAS has long been pivotal in offering early
conciliation services, this role has been further solidified with the move towards making such
conciliation mandatory (
COVID-19 has caused significant disruptions and backlogs in health care, new
WHO study finds
, no date). Though well-intended, the success of these efforts is critically dependent on
the mutual willingness and sincerity of both disputing parties, a factor that cannot be externally
imposed.
Conclusion
What emerges from this analysis is a picture of a system that has strayed considerably from its founding
principles. Despite the admirable goal of speedy, cost-effective, and democratic justice, employment
tribunals have gradually morphed into a more formalistic and less accessible mechanism. Procedural
reforms, meant to optimize the system, have instead introduced additional layers of complexity, thereby
deterring the very individuals these tribunals were designed to aid. Coupled with the COVID-19-related
setbacks, it becomes evident that while employment tribunals remain a crucial cog in the employment
dispute resolution machine, there is a pressing need for thoughtful reform to realign them with their
original objectives.
PART TWO
QUESTION A
Scenario 1: Changing the Sales Team’s Payment Structure to 100% Commission
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Introduction
CarsforU Ltd. stands at a pivotal juncture, led by its newly appointed manager, Diane, who is keen on
overhauling the sales team's payment structure. The drastic change from a fixed salary complemented
by a commission to a complete commission-based system presents an intricate landscape of legal
challenges. Notably, these legal issues pivot around the doctrine of unfair and constructive dismissal
under the United Kingdom's employment law. This report delves into these matters, critically examining
the legal ramifications of Diane's proposed shift.
The Breach of Express Terms in the Employment Contract
Within the confines of U.K. employment law, CarsforU Ltd.'s current employment arrangement explicitly
defines the sales team's remuneration—a combination of a fixed monthly salary and a performance-
based commission, capped at 20%. Diane's proposition, which she intends to implement immediately,
unilaterally alters these existing terms without the necessary consultation or consent from the
employees involved. This deviation constitutes a clear violation of contractual obligations, as defined by
existing jurisprudence (Kohn, 2002).
The typical course of action in making any amendments to employment contracts requires a mutual
consensus between the employer and the employee. Alternatively, a consultation period should take
place, providing a platform for both parties to negotiate any impending changes (Collins, 2010). Diane's
plan to circumvent this procedural requirement not only jeopardizes the company's standing in the eyes
of the law but also potentially erodes its credibility as a reasonable employer.
The Prospect of Constructive Dismissal
The term 'constructive dismissal' is invoked when an employer's unilateral actions or policies make the
working environment untenable, prompting an employee to resign. A seminal reference on this matter is
Honeyball (2020), which identifies three critical conditions to establish a claim of constructive dismissal:
Diane's proposal amounts to what can be classified as an 'anticipatory breach of contract,' according to
Smith & Thomas (2017). The company signals its intention to diverge from the original terms of
employment, which can be grounds for legal ramifications even before any material changes occur.
The second condition is the urgency with which the employee must resign following the employer's
breach. Delayed resignations may be interpreted as an implicit agreement to the revised terms, thereby
weakening the employee's position from a legal standpoint (Kigata, no date).
The final condition is the employee's need to attribute their resignation directly to the employer's breach
of contract. This is usually established through a comprehensive resignation letter that serves as pivotal
evidence if the dispute is escalated to a tribunal (Fredman, 2011).
Unfair Dismissal and Fairness Assessment
Unfair dismissal claims hinge on an employee having a service tenure exceeding two years. Within this
context, CarsforU Ltd would be under obligation to validate the fairness of the dismissal by fulfilling two
primary criteria:
Firstly, the reason for the dismissal must be 'fair,' potentially falling under the category of 'Some Other
Substantial Reason.' However, the subjective nature of 'fairness' would be open to interpretation, given
Diane's unilateral approach.
Secondly, the company would face significant hurdles in asserting that its actions were within the realm
of 'reasonableness,' especially considering Diane's haste in implementing the proposed changes, which
could violate standard procedure as outlined by Lewis & Sargeant (2013).
In scrutinizing fairness, the Employment Rights Act 1996, Section 98(4), presents a two-pronged query:
whether the employer's actions are aligned with what a reasonable employer would undertake and
whether due procedural fairness was maintained. Diane's abrupt and unilateral changes hardly align
with conventional expectations of reasonableness, and the absence of a consultative process questions
the fairness of the procedures followed.
Conclusion
The immediate implication of Diane's proposed structural changes in the sales team's payment model
introduces many complex legal challenges for CarsforU Ltd. These range from constructive to unfair
dismissal claims. The prudent course of action would necessitate initiating immediate dialogue with the
affected employees, conducted under the supervision of experts in legal and H.R. matters. This dual
approach not only mitigates potential legal risks but also cultivates an organizational culture rooted in
transparency and mutual respect, thereby positioning the company for sustainable success.
QUESTION B
Scenario 2: Annually Dismissing the Poorest Performing Staff to Drive Competitiveness
Introduction
CarsforU Ltd is at a pivotal moment, poised for growth yet facing an increasingly competitive
marketplace. Diane, the newly recruited manager, suggests an audacious strategy: the annual dismissal
of the company's poorest-performing staff. While such an initiative may, on its face, foster a competitive
environment, it risks plunging the company into a labyrinth of legal challenges. Chief among these are
the issues related to unfair and constructive dismissal, both framed within the concept of "capability"
under U.K. employment law. This in-depth advisory report provides a nuanced analysis of the complex
legal landscape that CarsforU Ltd would navigate if it implements Diane's proposal.
Unfair Dismissal and the Complex Realm of Capability
The issue of unfair dismissal, as codified in the Employment Rights Act of 1996 (ERA 1996), looms large
over CarsforU Ltd. This legislation confers certain protections to employees who have been with the
company for over two years. In particular, "capability" provides a narrow pathway by which a dismissal
might be deemed "fair."
Genuine Belief in Employee's Incompetence
Firstly, the employer must have a well-founded belief in an employee's inability to perform competently.
However, more is needed for this belief to be intuitive or anecdotal. It must be underpinned by robust
evidence, possibly from formal performance evaluations, productivity assessments, or KPI (Key
Performance Indicator) reports (Lewis and Sargeant, 2019). This assessment must be holistic,
encompassing a full spectrum of the employee's professional conduct and output rather than singular
instances of subpar performance.
Reasonable Investigation is Crucial
Secondly, there is a legal onus on CarsforU Ltd to conduct a balanced and comprehensive investigation
into the factors leading to an employee's underperformance (Deakin and Wilkinson, 2005). This entails a
rigorous evaluation that may involve examining completed tasks, soliciting peer reviews, incorporating
managerial feedback, and even factoring in external circumstances that could have negatively impacted
the employee's performance.
Fair Procedural Conduct
Thirdly, the employer must adhere to a meticulously fair and transparent procedural code. This means
formally informing the employee of their performance inadequacies, setting reasonable performance
improvement plans, and providing the necessary resources for the employee to meet these new
expectations (Smith, Warnock and Mitchell, 2023). Furthermore, the company must conduct periodic
performance reviews and offer the employees a platform to dispute claims or allegations.
Risk of Constructive Dismissal
Aside from unfair dismissal, CarsforU Ltd must also be attuned to the potential of constructive dismissal.
If an employee resigns in response to what they perceive to be an unbearable breach of their
employment contract due to Diane's proposal, they could potentially bring a claim for constructive
dismissal against the company (Fredman, 2011). Given this, transparent communication with the
workforce becomes not a choice but a necessity to mitigate against such risks.
Importance of Clear and Objective Performance Metrics
To ensure legally secure dismissals rooted in poor performance, CarsforU Ltd must operationalize clear,
objective, and quantifiable performance metrics. Establishing such benchmarks will not only provide
legal cover for the company but also bring about a sense of clarity and purpose among the staff (Deakin,
2017). If the company fails in this aspect, it exposes itself to unnecessary legal risks, including allegations
that the dismissals were arbitrary or discriminatory.
Conclusion
While Diane's proposal may be grounded in a well-intentioned desire to stimulate a high-performance
culture within CarsforU Ltd, it opens Pandora's box of legal ramifications. Navigating the intricate maze of
employment laws related to unfair and constructive dismissal necessitates caution, thoroughness, and,
above all, transparency. By adhering strictly to these legal frameworks and guidelines, CarsforU Ltd not
only insulates itself from potential litigation but also lays the groundwork for an organizational culture
that is once high-performing and respectful of employees' legal rights (Honeyball, 2016).
References
An Empirical Study of Employment Arbitration: Case Outcomes and Processes - Colvin - 2011 - Journal of
Empirical Legal Studies - Wiley Online Library (no date). Available at:
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