Employment Law: Sources, ACAS Code, Early Conciliation, Negotiated Settlement, Common Law

This document provides information on the sources of employment law, the interrelation between common law, statutory law, and European law, adjustments that can be made by the tribunal in case of non-compliance with the ACAS code, the main elements of the ACAS early conciliation program, how negotiated settlements can be binding, and the relation of common law to legal reasoning. It also includes advice on legal liabilities for discrimination claims, potential legal liability for constructive dismissal, circumstances under which a restrictive covenant could be valid, and how employers and employees can respond to changes in the employment contract.

EMPLOYMENT LAW
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QUESTION 1...................................................................................................................................3
1. Outline the sources of law that are relevant to the employment Tribunal- with examples and
explain how the interrelate..........................................................................................................3
2. According to the ACAS code of practice on disciplinary and grievances procedures, what
adjustments can the tribunal make if either party does not comply with code?..........................3
3. Summarize the main element of the ACAS early conciliation program introduced in April
2014.............................................................................................................................................4
4. How would parties ensure that a negotiated settlement (that is a settlement reached outside
of the tribunal process) is binding?.............................................................................................4
5. Explain the term COMMON LAW, its relation to cases and how cases may be used in legal
reasoning.....................................................................................................................................4
QUESTION 2...................................................................................................................................5
Advise Beckett LTD regarding any legal liabilities they may have regarding a discrimination
claim for Aslam...........................................................................................................................5
QUESTION 3...................................................................................................................................6
Advise Planck LTD of their potential legal liability regarding Marcus constructive dismissal. 6
QUESTION 5...................................................................................................................................7
Discuss, with reference to case law, the circumstances under which a restrictive covenant
could be valid and how the court may analyse a clause..............................................................7
QUESTION 6...................................................................................................................................7
Explain how the employer can attempt to vary the terms of the contract and how the employee
can potentially respond. Give examples of relevant case law in your answer............................7
REFERENCES ...............................................................................................................................8
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QUESTION 1
1. Outline the sources of law that are relevant to the employment Tribunal- with examples and
explain how the interrelate.
There are mainly three sources of employment law which includes the following-
1. Common law- As all employees work under employment contract in UK and the
common law forms the basis on which the employer employee relationship is governed.
The parties to employment contract are free to stipulate which law shall be governed in
the contract. These are the judge made laws.
2. Statutory law- From 1970, there has been a growth in legislation of employment and
these are the laws made by the Parliament who have the supreme authority to enact the
legislation. These include Equality Act, Employment Rights Act, National Minimum
Wages Act and many other.
3. European law- The UK is obliged to follow the European Court treaty obligations as the
law of EC are important in area of discrimination, equal pay and the rights of employees
on the business transfer.
It is essential for employers as well as employees to have proper understanding of these
laws as they are effectively interrelated with each other. It has been analysed that the sources of
laws are interrelated as these laws and rules are basically issued by official bodies from the three
branches of government.
2. According to the ACAS code of practice on disciplinary and grievances procedures, what
adjustments can the tribunal make if either party does not comply with code?
According to the analysis it has been determined that as per the ACAS code of practice
on grievances and disciplinary procedures if party do not comply with code then in this case, a
certificate will be issued by conciliation officer (Ataullah and Livesey, 2020). Furthermore, it has
been underlined that during this period time limit suspended by the stop the clock" provisions. In
this the claimant gets an opportunity of time period of a minimum of one month to file a claim
once the clock starts to run again.
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3. Summarize the main element of the ACAS early conciliation program introduced in April
2014.
The main element of ACAS early conciliation program that was introduced in April 2014 is
defined as:
The planned petitioner should send "recommended data" in the "agreed way" to ACAS. It
has been evaluated that the endorsed way is by telephone, online and by post. It is essential for
planned petitioners to phone ACAS who will at that point fill in the form. The data that the
individual must required to give to ACAS is the worker's name and address and the imminent
respondent's name and address. It has been determined that it is not necessary for individual to
offer detail related to dispute. In addition to this, it has been determined that the completed form
then will be further transfer to an Early Conciliation Conciliation Officer (ECSO). After this
ESCO will undertake telephone contact in order to make contact to prospective claimant main
purpose of this is to effectively gain basis information for example, date of incident, length of
employment and more.
4. How would parties ensure that a negotiated settlement (that is a settlement reached outside of
the tribunal process) is binding?
It has been determined that after the preparation of the deed of the settlement it is
essential for engaged parties to sign the deed. It has been determined that at this point of time
the settlement of agreement is legally enforced and binding on the party (Bull, Calvert-Lee and
Page, 2020). In addition to this, it has been determined that it is essential for engaged parties to
make sure that agreement must be in written and its further states that conditions to the
settlement agreement must be fulfil filed in effective manner.
5. Explain the term COMMON LAW, its relation to cases and how cases may be used in legal
reasoning.
It has been determined that common law is a collection of unwritten laws which is mainly
dependent on lawful points of reference that has been set up by the courts. Furthermore, it has
been evaluated that common law have significant influence during unusual case where the result
could not be resolved dependent on existing resolutions or composed guidelines of law (Martin
and Meheux, 2020). It has been determined that this law is additionally rehearsed in the United
Kingdom, Australia, Hong Kong, Canada, New Zealand and India. This can be effectively used
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in legal reasoning such as common law marriage which is also termed as non-ceremonial
marriage. Furthermore, it has been underlined that Common law places an importance on pattern
while allowing some freedom for explanation. It has same relevancy as that of the statutory law
and the lower courts are bound to follow the precedent of the higher courts.
QUESTION 2
Advise Beckett LTD regarding any legal liabilities they may have regarding a discrimination
claim for Aslam.
Issue
Whether Beckett Ltd is laible for the claim of discrimination by Aslam ?
State Rule
Here, the discrimination has been a major issue which shall be governed by the Equality
Act of 2010.
Application of rule
According to the case study analysis it has been identified that Aslam received unwanted
remarks in context to tightness of his clothes as well as physique. Along with this he also faced
wrong gesture by Davina. In context to this it is advised to Beckett LTD to effectively take
significant actions under The Equality Act 2010 (Martin and Meheux, 2020). This Act was
enacted to provide fairness to each and every individual in order to protect them. It is essential
for employer to provide equal treatment to all individual whether they are of any gender. In
context with Equality Act 2010, harassment states that it is an unwanted behaviour which is
associated to protect characteristics that have impact upon individual dignity and further develop
offensive atmosphere and develop bad environment (Mungan, 2020). The abusive and hostile
marks on Aslam will have significant impact upon their business relationship. Harassment faced
by Aslam can affect its working.
Conclusion
It is essential for company to ensure that proper measures must be taken in this case as to
provide benefits which are entitled in the Equality Act. It is essential for organisation to have in
depth evaluation of code of practice, employment and code of practice on services, association
and public functions. Company is advised to undertake legal liabilities such as taking strict
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actions against Davina in order to make sure that there is no such harassment activities prevailed
in organisational workplace structure.
QUESTION 3
Advise Planck LTD of their potential legal liability regarding Marcus constructive dismissal.
Issue
Whether Planck Ltd is liable for the constructive dismissal of Marcus?
State the rule
Here, the issue raised is relating to the Constructive dismissal which is provided under
Employment Rights Act and Industrial Relations Act.
Application of Rule
According to the case analysis it has been identified that Marcus has complain that due to
his short notice he could not expect to start work suddenly on different site which is also far
away and which will interfere with his child care arrangement. As per the analysis of this case, it
has been determined that Rosemary's bad behaviour lead Marcus to speak to Ursula who is
working in human resource. This may result in constructive dismissal of Marcus as he is being
forced to leave the job due to unnecessary conditions. In context to this it is advice to Planck
LTD that it is there potential liability in context with construct dismissals in which individual are
forced to leave their job against their will due to employer's conduct (Ataullah and Livesey,
2020). It is essential for workers to leave job with a serious reasons according to the law on
constructive dismissal. In this Marcus under the law can claim to employment Tribunal.
According to the Industrial Relations Act 1969 employee can claim that he /she was unfairly
dismissed. It has been determined that in the case of A Worker v Therapie Clinic (decision no.
LCR 21396), it has been deemed by the Labour Court that employer is liable for worker for
unfair dismissal under the Industrial Relations Act 1969.
Conclusion
It is advised to Planck LTD to have effective Workplace Relation Commission (WRC).
Along with this, it is also recommended to have fair disciplinary procedure and follow
procedures said down and effectively understands disciplinary matters and deal with them in
effective manner. If Marcus is unfairly dismissed then he is applicable for the compensation.
Furthermore company is being recommended to have own procedure when disciplinary
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investigation is required. Planck LTD should ensure that there must be disciplinary system set up
and that it is good for reason. Real adherence by Planck LTD to their method is of vital
significance when a disciplinary examination is required (Green, 2020). It has been determined
that the way that a worker may have been waiting on the post trial process or may have had short
of what one year's working or service when dismissed would not provide prevention and the
WRC or the Labour Court can force risk on a business as per the Industrial Relations Act 1969
for dismissal that has been unfair. It is likewise a significant suggestion to businesses that a case
under the Unfair Dismissals Acts not only sole alternative accessible to worker who accept that
he/she is being dismissed in unfair manner. Thus, it is advised to Planck LTD to adhere all the
procedures under the Industrial Relations Act 1969 as refusal or negligence lead towards
dissatisfaction among workers that further affects morale for staff.
QUESTION 5
Discuss, with reference to case law, the circumstances under which a restrictive covenant could
be valid and how the court may analyse a clause
The restrictive covenant is the clause which is incorporated in the employment contract
that seeks to restrict the actions of the people after their termination of the employment contract.
The general preposition is that the post termination restrictive covenants are mainly void on the
ground of public policy as being in the restraint of trade unless the clause is being used by
employer in order to protect the legitimate business interest. It is wrong to take the assumption
that the restrictive covenants cannot be upheld by the courts and whether these clauses are
enforceable shall depend on the particular circumstances of case. In the case of Tillman v. Egon
Zehnder Ltd, the Supreme court held that the restrictive covenants are the unlawful restraint of
the trade unless it goes further to protect the interest of the employers which is legitimate. The
court rules that there must be actual interest that covenant should be protected and scope of
restriction cannot further go than it is necessary to protect the interest.
QUESTION 6
Explain how the employer can attempt to vary the terms of the contract and how the employee
can potentially respond. Give examples of relevant case law in your answer.
There should be the express provision in the contract for the change in the employment
contract for existing terms. It has been identified that contract between employer and employee
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act as a fundamental tool that defined the relationship between both of the parties. It has been
determined that employer can attempt to vary the terms of the contract but in this, it is essential
for both the employer and employee to take advantage of right to collective bargaining. It is a
constructive forum for effective change in terms of employment, working condition and
relationship between the workers and employers (Ceil, 2020). It is one of the most flexible and
effective manner that effectively aid in anticipating potential problems and further develop
peaceful mechanism. With the help of collective bargaining, management and workers can
promote benefits and regulate relationship in effective manner. Collective bargaining effectively
facilitates the interest of both employers and workers with the help of balanced decisions can be
undertaken that further improve labour relationship. In the case of GMB v MAN Truck & Bus UK
Ltd, the ET held that the employer is duty bound to consult the employees when making
variation in employment contract.
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REFERENCES
Books and Journals
Ataullah, I. and Livesey, A., 2020. Maintaining High Professional Standards, morally, ethically
and fairly: what doctors need to know right now. Postgraduate Medical
Journal, 96(1141), pp.711-717.
Ataullah, I. and Livesey, A., 2020. Maintaining High Professional Standards, morally, ethically
and fairly: what doctors need to know right now. Postgraduate Medical
Journal, 96(1141), pp.711-717.
Bull, A., Calvert-Lee, G. and Page, T., 2020. Discrimination in the complaints process:
introducing the sector guidance to address staff sexual misconduct in UK higher
education. Perspectives: Policy and Practice in Higher Education, pp.1-6.
Ceil, C., 2020. A Case Study of Employment Right Act. Available at SSRN 3520487.
Ceil, C., 2020. A Case Study of Employment Right Act. Available at SSRN 3520487.
Green, L., 2020. Outsourcing Discrimination. Harvard Civil Rights-Civil Liberties Law Review
(CR-CL), 55(3).
Martin, H. and Meheux, M., 2020. Working in Different Leadership Teams with EPs and Others:
Dealing with Tricky Situations. Leadership for Educational Psychologists: Principles
and Practicalities, p.161.
Martin, H. and Meheux, M., 2020. Working in Different Leadership Teams with EPs and Others:
Dealing with Tricky Situations. Leadership for Educational Psychologists: Principles
and Practicalities, p.161.
Mungan, M.C., 2020. Discrimination and deterrence with enforcer liability. American Law and
Economics Review, 22(2), pp.303-338.
Rayner, C. and Lewis, D., 2020. Managing Workplace Bullying. Bullying and Harassment in the
Workplace: Theory, Research and Practice.
Reosti, A., 2020. “We Go Totally Subjective”: Discretion, Discrimination, and Tenant Screening
in a Landlord’s Market. Law & Social Inquiry, 45(3), pp.618-657.
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