'Sam, one of the directors of the company feels uneasy about the legal implications of the practice and comes to you seeking advice… What advice would you offer him? ' Research Method: This question covers a broad section of inter-related sub-topic areas, all of which are relevant to employment law. For this reason I began by reading a simple introduction to employment law; I used 'Employment Law-Specific Rights' by C. J Carr and P. J Kay in order to gain some basic knowledge of the subject.
The book deals with wrongful and unfair dismissal and discrimination, concentrating on employer as well as employee rights. It provides a brief explanation of each thus allowing me to break down my argument into various sections. I realised however that further research was required as the statutes referred to by Carr and Kay were out of date. I decided to look at relevant statutes directly. I found these using Halsbury's statutes as well as the statute encyclopaedias in the law library. The key statutes with regard to the question come in the form of:
After reading the statutes it became apparent that some would be more important than others in relation to the question. In terms of definite employment law, the Employment Rights Act (1996) stands above the ancillary acts that come after it i. e. the Employment Relations Act (1999) and the Employment Act (2002). Having decided that the Employment Rights Act was of importance I searched for a book that would be relevant to both the Act and the notion of dismissal, which is a dominant part of the question.
'Compensation for Dismissal' by Anthony Korn was extremely helpful in defining the position and rights of employees and employers when the former are dismissed, while at the same time making constant allusions to the Employment Rights Act. It also served to increase my understanding of the various avenues that dismissed workers and interviewees would be able to use against Sam and his company.
I discovered that in terms of making an initial complaint those involved with 'Type U Like' could either make a claim for wrongful or unfair dismissal (or both, although they would not be compensated twice), or alternatively they could base their claim on a breach of the Disability Act (1995) As wrongful dismissal is 'essentially an extension of the ordinary common law rules which govern the termination of a contract'1, I read relevant pages from Adam's and Brownsword's 'Understanding Contract Law' and Ewan McKendrick's 'Contract Law'.
In doing so I gained information regarding breach of contracts and the Unfair Contracts Act. I read more specifically from Treitel's 'The Law of Contract' in order to investigate standard form contracts. Most of my information regarding unfair dismissal was found in 'Compensation for Dismissal' but I also used 'Unfair Dismissal Cases' (2nd edition) by John E McGlyne in order to broaden my knowledge of procedure and so that I would further understand the variance involved. Finally, I wanted to understand the tone of modern employment law.
I needed to know how more about the position of those involved. I read 'Leading Cases and Materials on the Social Policy of the EEC' by Angela Byre. Although she deals mostly with sexual and racial discrimination the book provided me with information regarding EU directives expressly concerned with protecting the employee and it reflects an inherent desire to eradicate discrimination and fundamental breaches of contract, both of which are of paramount importance to the essay. Essay: The actions of 'Type U Like' reflect the tone of fear that permeates employers in the modern world.
Claims for damages due to personal injury at work, are becoming more and more prevalent. 'Type U Like' reflects the desire of many companies to protect themselves against this wave of complaints. However, the proactive approach of 'Type U Like' may be very damaging to the reputation of the company and its directors. Sam is right to feel uneasy about their adopted policy as it encroaches upon the boundaries of law. Indeed, the irony is that in attempting to avoid claims for damages 'Type U Like' seem to be increasing the likelihood of this happening.
There are various ways in which employees and interviewees have the ability to combat the behaviour of 'Type U Like'. I plan to explain the dangers of such behaviour as well as conveying ways in which the company might avoid any course of action from those affected by their testing policy. Issues concerning wrongful and unfair dismissal and discrimination are paramount in terms of the information Sam requires. As mentioned above, wrongful dismissal is an extension of contract law:
'A dismissal is therefore wrongful if the employer either terminates the contract in a manner which is contrary to its terms or does some other act which shows an intention not to be bound by it. '2 'Type U Like' fall under both categories. If they continue to surreptitiously dismiss those employees who suffer from the Chromosome deletion they may face severe results in terms of claims under breach of contract. The actions of the company reveal intent not to be bound by the initial contract thus they will be deemed to have repudiated it, such as occurred in Bliss v South East Thames Regional Health Authority .
Here, it was decided by the court of appeal that the Authority had repudiated the contract by insisting upon a medical test for one its consultants. 'Type U Like' therefore, as in the cited case, has no power to insist upon medical examinations without providing their employees with a reason. They should not '… act beyond the powers conferred upon them by the contract itself. ' 3 Indeed, upon acting in such a manner 'Type U Like' serves to repudiate the contract further as it insists upon extra terms of employment as reflected in Burdett-Coutts and others v Hertfordshire County Council .
It is not even possible for the company to set their form of medical testing as part of a standard form contract as an attempt to do so would work against Section 2 of the Unfair Contracts Act which deals with companies' attempts to exclude or restrict liability. Section 1. 1 defines negligence as: 'the breach – (a) of any obligation, arising from express or implied terms of a contract, to take reasonable care or exercise reasonable skill in the performance of the contract. '