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The purpose of this assignment is to have an inner view how the labor law mechanism works. Both this problem questions mainly focusing on two legislations such as Employment right act 1996 and Equality act 2010. In which it require to give advice to the respective claimant’s .
Introduction
As a whole these two questions are introducing the law on the contract of employment, because obviously all these problems centered around contract of employment. For every employment there must be a contract or it must be stated in black and white. All contracts are made up of terms such as express term and implied, which need the commitment of the parties.
Answer Q1
Part 1 of the question is dealing with the first scenario of Mr. Robert Tan, who is claiming for housing allowance of 1000 Rm every month under Parol evidence rule against Asia Pacific College of Further Education. Which is mention to him during the interview, but it was not given to him as it was not incorporated into the employment contract.
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The Parol evidence rule has a long historical development in the English law from the time of Anglo Norman law for the enactment of the statue of frauds in1977. But it actually came into notice in the eyes of law from the case of Nelson v BBC (1980) where there is a gap in the written express terms which may see as a general contractual principal. So that’s why it’s become an absolute necessity to bring Parol evidence rule which ratifies a principle of the common law of contract that assumed, that a signed contract represent a full contract between the parties. So to avoid evidential difficulties there is a case of Jacobs v Batavia& General plantation trust Ltd (1924) 1 CH287, the rule, therefore generally do not allow the parties to use extrinsic evidence to add, to vary or contradict the terms of the contract (Duddington 2007).
In the case of MR. Tan, who has to fulfill the pre criteria’s under Parol evidence rule in order to claim a housing allowance first he has to prove in the court that he has been promised orally to be given a housing allowance during the interview but the Asia pacific collage did not put into writing so the written express terms are unclear. Although there are many limitations for Parol evidence rule since it emerged and reach its peak. But the key exception which applies to MR. Tan case for Parol evidence is where the verbal evidence is used to supplement or enhance or to clarify something in a written document or something that is stated and not incorporated. In other words where only a part of the contract is in writing so that extrinsic evidence is needed to clarify the rest of the contract (Wahana, Praditha, 2018).
The case which can be mention is J. Evans v. Andrea Merzario 1976 1WLR 1078 in which the contract between the parties was construed as being broader than the part of it that was put into writing so basically there is a gap in the written express terms as the scenario of MR. Tan, so in that circumstances court is willing to accept the extrinsic evidence that did not form part of the written aspects of the contract.
Once Mr. Tan proves himself to fall under Parol evidence now the burden shifts on the institute which in this case Asia pacific collage to prove two clauses which is may look to include into their contract. First is entire contract clause and the second is flexibility clause which make the nature of the employment relationship difficult. Overall Eat defended the interpretation of the tribunal by saying that it’s not easy to prove these clauses in the case law unless there is a commercial context involved .
In Conclusion, Mr. Tan has fulfill all the criteria for claiming housing allowance under Parol evidence rule.
Part 2 of the question is dealing with the second scenario of Mr. Tan in which he is claiming for unfair dismal section 94(1) under redundancy.
According to section 94(1) of the employment right act 1996, employee has the statutory right not to be unfairly dismissed by the company or employer. The purpose of this act is to fill the gap in the common law of wrongful dismal by providing employee with a substantial remedies for unfairness. Unfair dismal is the situation in which the employee feels that he was unfairly treated while in an employment and he had been forced to leave.
In this case, Mr. Tan has to establish pre two criteria’s to be fulfill in order to succeed in unfair dismal claim first is that there was a dismal indeed and secondly the dismal was unfair. Then Mr. Tan must prove or avail himself for the remedy, but before that he should be an employee in the first place that working under contract of employment under (s.230(1) .
Secondly, he has worked for more than two years under (s .108 (1). As long as he can fulfill these two conditions, then he can bring his case to the labor court for remedy under unfair dismal. There are three types of dismal laid out in section 95 but according to the facts of Mr. Tan it does not fit in any of these types. As this is specifically on redundancy issue. Which is defined as when there is no more job available or the position does not exist. But in MR. Tan case if he wants to win the case in the court against Asia pacific collage, Therefore he has to prove if possible that there is no redundancy its rather an unfair dismal by showing the evidence that in his place Asia pacific hire his deputy as a new Chief Academic Officer.
A redundancy process leading to a dismal may be considered unfair when Mr.Tan fulfills the three requirements that were established in the case of Williams v compare Maxim (1978) first unfair selection process has been used, secondly no prior warning or consultation. Thirdly, no redeployment which is another case that can be seen on a redundancy issue is Nelson v BBC (1980) in which the BBC failed to prove that there is redundancy Situation occurred so it was considered as unfair dismal because the redeployment is not offered by the BBC.
Once Mr. Tan qualified a claim against Asia pacific Collage then the burden automatically shifts on the Asia pacific to show the reason that redundancy is fair and it must be shown on the balance of probabilities. Now the defendant which in this case is Asia Pacific can raise four defenses to show that he has dismissed Mr. Tan fairly. So first, the defendant must show that he falls within the category of fair reason to dismiss such as redundancy that a company went into debt (98(1-2). Secondly, he has acted in a reasonable manner. Thirdly reasonableness of his decision and lastly, it might fall under the extensive list of grounds as Automatic unfairness. Once Asia Pacific has managed to establish one of the prior criteria for the Mr. Tan and the decision is made by the labor court.
Now in order to succeed Mr. Tan has to take his case to the next level, it only be challengeable on the request where he proves three things and the case is Pigott Bross v Jackson (1992) firstly, an employment tribunal has misdirected itself as to the law. Secondly, there was a lack of evidence and lastly the tribunal decision was perverse meaning totally acceptable, if the employee able to prove one of the three reasons only then he able to reverse the decision against his employer( Nairns,2008)
Conclusion
Mr. Tan succeeded and able to prove that Asia Pacific has unfairly dismissed him and now Mr. Tan can seek suitable remedies under section 112 such as reinstatement, re-engagement and compensation which generally made up of two elements a basic award and a compensatory award. But I suggest Mr. Tan to go for compensation award, which is an amount that tribunal considers is just and equitable in all the situations having regard to the loss continued by the complainant under (ERA,1996 s. 123 (1)).
ANSWER Q2
Part one of the question is dealing with the scenario of Mr. Albert Andrews, who is claiming for direct age discrimination under protected characteristics section 4. In which you cannot discriminate a person on a basis of age. Although he has been dismissed by his new managing director of Best Car Ltd. On a basis of age. But he has served his best 30 years with full dedication and now he is 50 years old.
In this case if, Mr. Albert Andrew wants to raise an issue of age discrimination he first has to prove there is discrimination in the first place. The process in the discrimination claim is stated in section 136 of the equality act 2010. Proving discrimination claim is hard, however according to section 136 a two stage process is layout. First Mr. Albert Andrew has to prove there is discrimination. Second the employer must disprove the discrimination, which in this case is Best car Ltd.
Discrimination can be direct or indirect. But according to the facts, it is direct discrimination which is defined by section 13(1) as treating a person less favorably because he belong to the category of a protected characteristic. The case that can be seen under direct discrimination is James v Eastleigh Borough Council [1990] IRLR 288. Once direct discrimination is proved for less favorable treatment, then there is no defense for the employer as its not indirect discrimination. But the exception to this is direct age discrimination in which there is a defense set out in 13(2) for the employer which in this case is a Best Car Ltd in that if it’s a proportionate means of gaining a legitimate interest, then the employer can win the case which can be seen in the case of Seldon v Clarkson Wright & Jakes(2012) UKSC 16 in which the claimant appeal is dismissed on a basis of direct age discrimination as Employers is able to show that it has a legitimate aim to do so (A. C. L. Davies,2015).
In a nutshell, Mr. Andrew is successful in proving his claim on direct age discrimination because Best car Ltd has not shown their legitimate aim of dismissing him. So Mr. Andrew can now attain the suitable remedies under section 124 of the equality act 2010. But I recommend him to go for compensation award.
Part 2 of the question is dealing with the second claimant which in this case is Elizabeth, who is claiming for inequality of salary when she find out that she is payed less than his male colleague carry out the same job under Equality act 2010 and protected characteristics .
There was an equal act in 1970 and sex discrimination act in 1975. Both these Acts were combined in 2010 when parliament passes an equal pay Act 2010. Equality Act 2010 change the earlier law on discrimination in employment. In labor law, there are certain groups of people who can automatically avail themselves of discrimination and they can claim for equal pay and discrimination.
In this case, if Elizabeth wants to raise an issue on pay and discrimination and she should know that there are two parts either direct discrimination and indirect discrimination. Direct discrimination is someone treated less favorably because she belongs to the category of protected characteristics( s.13(1). ).
The case that can be seen under direct discrimination is Smith v Safeway PLC (1996) in which a separate dress policy is required for men and women relating to length of hair. So basically there was a policy where a man cuts their hair they cannot work, whereas women they do not have to cut their hair so a man bring a claim against the company on the basis of direct discrimination, but the court held that. Safeway has a policy on grooming on dress code so therefore it was justified that was no discrimination. Since she fall within one of the protected characteristic which in the case of Elizabeth is sex discrimination in which cannot treat men and women doing the same job differently.
So before even Elizabeth can avail herself and bring a claim under protected characteristics. First she has to prove she is under contract of employment under section 83 of the equality act 2010. Next she must be able to prove three elements as established in the case of Jivraj v Hashwani (2011) UKSC 40.
Firstly, there should be a contract of employment in the first place, secondly personal performance meaning where she had carried out the job, and lastly subordination there was some form of subordination between the employer and employee. As long as Elizabeth fulfills these three criteria’s according to the case of Jivraj, she has established the first limp. Now she can bring a claim in the labor court by saying that she has been wronged and she should payed equally. But there are two limps firstly, she says that she is being wronged because she is a woman and secondly, she say that she been wronged because she is being payed lesser because she is a women and under section 4 in the act is protected characteristics.
Elizabeth should avail help under section 66 of the EA 2010, which specifically permits the gender discrimination on contractual terms meaning terms must be equal to all employee’s by imposing sex equality clause in a contract of employment. So when this equality clause applies refer to SS. 64-65. So if Elizabeth wants to avail herself for equality clause she must prove three conditions, first she must show comparator that is defined as individuals employed by the same employer on common terms and conditions under s79 (1-4).
Second condition that needs to fulfill is that she has done a job that is equal to his male colleagues this is stated in s64-s65 as equal. Third is there are three ways in which work can be classified as “equal work”. First is like work which is defined by section 65 (2) as a similar kind of work like a man in the same employment with no practical difference in their terms, and the case that can be seen in like work is Capper Pass Ltd v Lawton [1976] IRLR 366. in which it was held that their work has no practical differences so their work considered to be the same. Secondly worked rated as equivalent value and third is a work of the similar value section 65(1) ( Cabrelli , 2017).
Once Elizabeth has established their claim under inequality by proving three conditions mention above such as comparators as well as equal and able to showed one of the like work, work equivalent value or work of equal test has been satisfied, if she able to fulfill both sides, therefore she can avail herself for this claim equality clause. Then the burden comes on the employer to defend himself.
Equality clause can be prevented from coming into working if there is a valid defense under section 69 by the employer. An employer can raise two defenses first is he has to show that the difference in the pay is not based on the sex of the parties, but rather it is based on a material factor that can be objectively justified on the needs of the business. Secondly, it must be shown that the material factor involves a proportionate means of attaining a legitimate purpose in the situation.
Section 71 of the equality act 2010 enables Elizabeth to make a claim for equal by choosing a comparator and secondly must show direct discrimination section 13(1).
The process in the discrimination claim is stated in section 136 of the equality act 2010. Proving discrimination claim is hard, however according to section 136 a two stage process is layout. First Elizabeth has to prove there is discrimination. Second the employer must disprove the discrimination. Once direct discrimination is proved there is usually is no defense for the employer which in this case is Best car Ltd.
Conclusion
Elizabeth is successful in proving that Best Car.Ltd is liable in doing inequality between the sexes salary. Although there are three remedies under section 124 of the equality act 2010, first a declaration of the rights of the parties, second a compensatory award and the third is recommendation .But I suggest Elizabeth to go for the first remedy which is about declaration of the rights of the parties.
References
- Wahana, Praditha. (2018). Parol Evidence rule doctrine as the limitation for the Parties in Submitting evidence before court .33. 417.
- Duddington,(2007). Employment law . second Edition . UK : Pearson education limited.
- Cabrelli,(2017). Law express employment law .5 Edition .Uk: Pearson education limited.
- A.C. L. Davies,2015. Longman law series employment law. Uk : Pearson education limited.
- Nairns, (2008). Employment law for business student.3 Edition. UK : Pearson education limited.
