WRONGFUL DISMISSAL
IS THE PROPOSED CHANGE A BREACH OF CONTRACT?	Identify the term that is being varied Check the contract – Is there a term that allows changes to be made? If so, no breach occurs upon changing the term unless the employer implements such a term in an unreasonable way – that could potentially be a breach of the implied term of mutual trust and confidentiality which amounts to a repudiatory breach (United Bank v Akhtar) If no term that allows flexibility – breach as the employer has altered the terms of the employment contract
IS THE BREACH SERIOUS ENOUGH TO AMOUNT TO A REPUDIATORY BREACH?	Pick out the facts that suggest it is serious: Curtails social life Makes childcare arrangements difficult Pick out the facts that suggest it is not serious: No change to overall hours No change to shift pattern No change to location Conclude appropriately and state it is a question of fact for the tribunal If the breach is deemed not to be sufficiently serious to be a repudiatory breach, it will still be a breach of contract. This means that the claimant can still bring a breach of contract claim in the civil courts. However the claimant must show his loss and this may be difficult as the claimant may not have lost anything (e.g. his hours may have just changed – same pay)
IF IT IS SUFFICIENTLY SERIOUS TO BE A REPUDIATORY BREACH…	Continue to work and accept the breach Leave and do not bring a claim Continue work under protest (i.e. raise a grievance as not to waive the breach) Resign within reasonable time on the basis of constructive dismissal and claim unfair dismissal
REMEDIES	Net salary and benefits for notice period
OTHER CLAIMS
UNFAIR DISMISSAL	Use flowcharts and model answer The employer doesn’t have to show that the change was essential; just that they had a good reason It will usually in this case be for Some Other Substantial Reason When it gets to procedure, answer the questions on the flowchart from WS3 – if the employer hasn’t done one of those things (such as consult the employees), advise them to do it now Remedies: If it is just a change of working hours for example there will usually be no loss Also the employee has a duty to mitigate, and not accepting the new hours will contravene this duty Therefore it is probable that the employee would only be awarded the basic award
INDIRECT DISCRIMINATION	Usually exactly the same as normal indirect discrimination Follow flowcharts and model answer
OPTIONS
IN RELATION TO THOSE WHO HAVE BEEN INDIRECTLY DISCRIMINATED AGAINST	Do nothing + No expenditure – Will not fix problems Impose new terms and conditions through the issuing of new contracts and see how they react + employees might not claim – WD and UD claims may be brought by employees – They may sign up to the new contracts and then simply refuse to work under the new terms – this leaves the employer in a real mess as they then must decide whether or not to dismiss them for conduct reasons Introduce new terms and conditions through the issuing of new contracts for everyone except those who have been indirectly discriminated against – give them the ability to opt out + No claims from those who claim that they have been discriminated against – May cause resentment among other employees – they then might try and get the same treatment
IN RELATION TO EVERYONE ELSE	Do not implement the change + No expenditure – Will not fix problems Impose new terms and conditions through the issuing of new contracts and see how they react + employees might not claim – WD and UD claims may be brought by employees – They may sign up to the new contracts and then simply refuse to work under the new terms – this leaves the employer in a real mess as they then must decide whether or not to dismiss them for conduct reasons Dismiss all employees who are ineligible for unfair dismissal claims (less than 1/2 years continuous employment) with the correct notice + Great option for the employer as no unfair dismissals arise for those employees + No WD claim as proper notice given – Does not address the problems with those who do have UD eligibility Give all employees the correct notice of termination and issue new contracts that start when the old ones expire + No WD claim as proper notice given + The employees may just accept the new hours + If the client followed advice to make the dismissals as fair as possible by holding...

#9731 - Varying Terms Model Answer - Employment Law

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