Making an Application for Costs - Case Study Example

Q3a Bob Hoskin is considering selling Ruby Jewellery Limited as a going concern. Advise whether Ruby Jewellery Limited can dismiss both employees, Sandy Kyaw and Ivy Elen before the transfer takes place. In the case, the company wants to dismiss two cleaners who have been working for the company. However, the dismissal is based on the fact that one of them has been consistently late, but they come from the same company. The two employees are co-owners of a cleaning company, and it is not clear whether the contract with Ruby Jewelers is with the company or with each of the two employees. These employees have been employees for more than one year, and the Employment Rights Act 1996 section 94 protects them from unfair dismissal. The lost service charge provisions of TUPE cater for services that are contracted by an entity and they are paid for them solely. The lost service charge provisions are not protected by TUPE because they are deemed to be independent contracts that have been outsourced. They are only protected when the service entails the provision of one whole activity such as catering, and when the completion of the job is credited to the company, such as the entity has no options of other service providers. The basic principle of UK law is the sale or transfer of an entity automatically brings all the contracts the entity had with the employees, and the employees have a choice on whether to continue with the new entity or resign. This makes a lot of legal sense because of the nature of a contract, which is an agreement between two parties regarding a particular subject. A contract is reached upon after considering many factors, bargaining and the future circumstance. Therefore, imposing a contract upon a secondary entity may not be fair. However, Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) law is lenient on employees and protects their rights but this protection is not automatic. The law has to consider the circumstances of each case to see whether the employees qualify for a protection or not. Therefore, this question applies the Transfer of Undertakings (Protection of Employment) law because it touches on the transfer of an entity and also on organized group of employees. In the case of Argyll Coastal Services v Sterling and others UKEATS/0012/11/BI, the question that came up for consideration by the court was the definition of the word organized group of employees. The court contented that an organized group of employees was a particular set of employees who were less than the entire workforce of the entity concerned and who worked together as a team for the accomplishment of a particular purpose. However, on appeal, the court contended that the group was not an organized group of employees within the meaning of Transfer of Undertakings (Protection of Employment) because the tribunal failed to consider issues like "activities", "organized grouping of employees", "principal purpose", and "situated in Great Britain", as used in regulations 3 and 4. The other case that explains further the concept of an organized group of employees and how they should be treated is the case of Seawell Ltd. v Ceva Freight (UK) and another UKEATS/0034/11/BI. The major principle in this case was that an organized group of employees must have been organized for a particular purpose, and not just a coincidence. Therefore, these two cases reflect on the situation herein. The two employees of the cleaning company that Ruby Jewelers wishes to terminate can be considered to be organized group of employees, because they have a specifically incorporated company that they incorporated so that they use it as a vessel to provide services to the Ruby Jewelers. The company so formed is co-owned by the two cleaners, and both of them specialize in the cleaning of the company, meaning that the organization is not just coincidental. The second question to consider is whether the sale of the company is a relevant transfer as this will dictate whether the employees of the company are transferred to the transferee. If the sale is a relevant sale, then the contracts of the two cleaners will automatically transfer to the purchasing company according to regulation 4 (1). The case of Spijkers v Gebroeders Benedik Abattoir (1986) is an authority in this circumstance because all the factors to be considered in a relevant sale were considered. In considering a relevant transfer, the courts sought to look at the nature of the sale, the continuity of the business and the identity of the new entity. The brief facts of the case were that the plaintiff was employed by a slaughterhouse that was later sold to the defendant. The plaintiff and one other employee were not retained by the new company, while the selling entity became insolvent a few months after the sale. The question was whether there was unfair dismissal by the defendant as a result of an automatic transfer of the plaintiff to the defendant company. The question before the court was whether there was a relevant sale, and the court considered a hoard of factors before determining whether the sale was relevant. The first issue that the courts considered was whether the sold entity reined its identity and that the work of the employees in consideration can be said to have continued in the new department. In application of the above case to the current scenario, it is noticed that if the sale is made as a going concern, TUPE will apply because there wont be substantial change in the nature of the business, and that the customers of the new entity will be transferred. The assets, both tangible and intangible will pass hands, and the business after the sale will be substantially the same. Therefore, it is advised that Transfer of Undertakings (Protection of Employment) section 3 and 4 apply. Section 3 defines what a relevant transfer s, and section 4 gives protection to employees in case of a relevant transfer. Therefore, the employees will be unfairly dismissed if Ruby Jewelers dismisses them. However, it is noted that if the transfer only touches on the assets of the entity, this will not be under Transfer of Undertakings (Protection of Employment) and Ruby Jewellers will not be liable for unfair dismissal. However, another avenue for dismissal without facing consequences of unfair dismissal, if the employees are dismissed because of a breach on their part, and the breach should lead to an economical, technical and organizational consequence to the company. Constant lateness does not lead to the above unless it is shown that the lateness concerns affect the working of the employee. Either way, it will also not affect the other employee who is constantly early. It should also be noted that ETO reasons apply as an exemption and the employer is mandated to prove this exemption. In the case of Dynamex Friction Limited v Amicus [2008] IRLR 515, it was held that ETO reasons include profitability of the transferee’s business, nature of the equipment or production processes which the transferee operates or a reason relating to the management or organizational structure of the transferee’s business. Sandy Kyaw can be dismissed on the ground of conduct (section 98(2) Employment Rights Act of 1996) if she continues to be persistently late. Her dismissal is generally unconnected with the transfer, so the usual unfair dismissal principles will apply. With Ivy Elen, she is protected by Reg 3(1)(b) and Reg 3(3) Transfer of Undertakings (Protection of Employment) because the cleaning has been outsourced. Reg 3(1)(b) and Reg 3(3) deals with services that are provided by an outside contractor, and which services can be provided wholly by the outsourced entity. The outsourced cleaning services are provided by an independent company that was formed by Ivy and Sandy. The company does all the activities to do with cleaning in the entity, and thus they qualify for protection under TUPE. Provided that she has more than two years’ service, she can bring an unfair dismissal claim if she is dismissed because of the transfer unless there is an ETO reason. 3(b) Susan Boyle is the longest serving employee of Wing Pie, and she serves in the position of a financial manager. Her work does not require any physical fitness, but requires mental alertness so that she does not make any serious business in accounting. She wishes to work for five more years after attaining her 65th birthday. The question on whether Susan Boyle can be dismissed by Wing Pie will be answered sufficiently if the Equality Act 2010 is considered. Under the Equality Act, a person discriminates against another if he applies a protected characteristic favoringly. Age is such a protected characteristic of the Equality Act that if anyone is forced into compulsory retirement, then the person them into compulsory retirement is guilty of discrimination. This is provided for a direct discrimination provision of the Equality Act because as long as one has not attained the retirement age provided for by the law, then the person cannot be disqualified based on his age. This provision of the Act was put up to safeguard the employees who were aging and their output diminish in ways that do not affect the company and the employers want to take advantage of such diminished output. Age discrimination does not only apply to old age, but any situation whereby an employer refuses to grant work to a person, or dismisses a person, or takes any other employment decision basing on the age of the person and not on any other characteristic. Because age can be objectively measured, the burden of proving that there was no discrimination shifts to the employer the moment an employee proves his age to the court. In proving that his action was not discriminatory, the employer ought to show that the action taken based on the age of the employee was geared towards the attainment of a specific objective. In the case of Seldon v Clarkson Wright and Jakes (Supreme Court, 2012, a question arose as to what may amount to age discrimination, and how the courts could assist employers to avoid age discrimination, and the court held that the employers could avoid suitability reviews that tend to focus on performance based on age, if the age in question does not provide a legitimate aim to business. Therefore, actions based on performance reviews that touch on age will be deemed discriminatory if the action undertaken by the employer does not in any way touch on a legitimate cause. In another case of Bloxham v Freshfields Bruckhaus Deringer (2007), the defendant company carried out reviews to their pension scheme and the new terms of service seems to be against the older employees because the younger employees were considered at length. However, after the age was proven and the terms proven to be discriminatory against older employees, the employer defended the action as a legitimate aim because it sought to improve the terms and conditions of pensions of the younger employees. In yet another case of Rolls Royce Plc v Unite (2009), the courts held that it was a legitimate aim to offer larger redundancy benefits to an older employee as compared to a younger employee because this was a legitimate indication of rewarding loyalty and faithfulness to one employer. In Berriman v Delabole Slate Ltd [1985] IRLR 305, CA, the courts considered a situation whereby employers can use unfair terms to force the employee to resign, and contended that if an employee is forced to resign by factors attributable to the employer, then it would be classified under unfair dismissal and the employer will be liable. However, it has to be shown that the action taken was a proportionate means of achieving the desired decision. In the case of MacCulloch v Imperial Chemical Industries PLC (EAT, 2008), it was held that the issue of proportionate consideration before a discriminatory act had to be considered at length. The tribunal ought to consider the action in the context in which it was performed, as well as consider the individual attributes that led to the decision. The tribunal ha to consider whether there was no other way in which the results could be obtained without the discrimination, a well the cost-benefit analysis of the decision. In this case, it is noted that Wing Pie can only aid Susan in the dissemination of her duties, and they cannot be justified if the company does anything to frustrate Susan and make her resign. From the above analysis, therefore,it is noted that the equality Act is an Act that came into the rescue of those who were going to be discriminated against because they are too young or too old, even when their functionality has not been affected by the age. Wing pie cannot fire Susan, or force her to retire early because Susan is protected under the law, and any attempt to fire her based on age will lead wing pie to answer legal charges. However, if they can show a legitimate reason as to why the age discrimination was carried out, then they can have a reason to fire her. 4(a) Particulars of Response to accompany the ET3 Form IN THE EMPLOYMENT TRIBUNALS MANCHESTER Case no: 123456/2015 BETWEEN DONALD DRAKE…………………………………………………………………………...Claimant And SCOTTIES LTD ………………………………………………………………………...Respondent PARTICULARS OF RESPONSE UNFAIR DISMISSAL 1. It is true that the Respondent is a coach company based at 27 Sir John Thomas Street, Mumford SW12 6JT. It employs 14 staff in total. 2. It is true that Robert Thomas is 45 years old. 3. It is true that he was a full-time coach driver at Sutcliffe & Sons Limited (‘the Company’). He started working at the Company when he was 20 years old and got on well with colleagues. It is true that he had an excellent work record and has not had any oral or written warnings before. This means that he has served the company for a period of more than 1 year, and thus protected by the Employment Act against unfair dismissal. 4. The Claimant spent most of the time driving long-distance trips as he is the most experienced driver in the Company. On Fridays, he normally worked in the office and dealt with administrative work. He usually worked a 40-hour week. 5. It is true that on 9 May 2014, the Claimant was responsible for the Oxford Blenheim Palace Tour Weekend Trip. He had to drive back from Oxford to Mumford with 48 customers on his coach after a weekend in Oxford. 6. It is true that the Claimant has driven this route several times before, but the familiarity with both the itinerary and the motorways has not been proved and the claimant is put to strict proof thereof. 7. It is true that around 5:45 pm, the Claimant’s mobile phone rang. The Claimant was driving the coach at the time. 8. It is true that the company runs a strict policy on mobile phones, namely that only hands-free kits are permitted whilst driving. All the company employees, including the driver, are given the company policy on mobile phones before they sign their contract of employment. The company policy on answering calls whilst driving has no exception whatsoever. 9. The evidence we received was that the driver spoke for a very long time on the phone, and the passengers were terrified for their safety. Even if contrary evidence was to be received, the fact that the claimant admits that he spoke on phone while driving is a very grievous offense because he endangered the lives of the passengers on board. 10. When the driver arrived with the passengers, the director did not say anything to him because he had not received the allegation then. Even if he had received the same, there is no policy in the company mandating the manager to discuss unverified information with the claimants. 11. The passengers did not complain to the manager, and here was no need for alert because there is no such policy in the company. Customers may use any other means to disseminate information to the company even long after they have left the premises. 12. The customer’s photograph is clear evidence that the Claimant used his mobile phone whilst driving along a motorway. This is clearly unacceptable behavior. The Claimant has breached the Company’s mobile phone policy and risked customers’ health and safety. He has misplaced his hands-free kit as well. 13. The Respondent held a meeting with the Claimant on 14 May 2014. The Respondent asked the Claimant why he used his mobile phone whilst driving and provided opportunity for the Claimant to explain. The Respondent re-iterated the company’s strict mobile phone policy and dismissed him with immediate effect. 14. The reason for the dismissal is the Claimant’s unacceptable behavior. It constitutes gross misconduct and as such summary dismissal was appropriate. 15. The contractual term, allowing for immediate dismissal must not have been introduced as a variation of an existing contract if the provisions of Equality Rights Act 1996 which provide for the exceptions to unfair dismissal. 16. Under section 98, there are exceptions to unfair dismissal that employers can resort to dismiss without legal consequences. They relate to capability or qualifications, conduct, redundancy, retirement, statutory ban and ‘some other substantial reason’. 17. The current situation relates to the conduct of the employee in the performance of his duties. 18. The policy signed by the employee while getting employment relates to the very reason that he joined the company, namely to drive the company customers and stakeholders. Breach, is therefore, a breach of the main terms of the contract. 19. Breach of a main term of the contract entitles the aggrieved person to repudiate the contract, and employers can do so by terminating the services of employees. 20. The claimant had worked for a very long time with the company, and therefore, he ought to have known the company’s policy on zero tolerance for speaking on the phone while driving. 21. The respondent contends that immediate dismissal was the only reasonable way to punish misconduct because the accompanying risks high. 22. It is also noted that under contract law, each party is bound by the terms and conditions that were agreed on before engagement in the contract. Therefore, since the driver was well aware of these terms, and he chose to breach them, he is liable for breach. Also since this goes to the heart of the contract as it entails the safety of the employees, the term is a condition, and the company is entitled to repudiate the contract. It is also noted that under the Employment Protection Act 1975, there is ACAS (Advisory, Conciliation and Arbitration Service) that aims at solving employment disputes before they opting to litigation. Therefore, we advise the driver to consider this instead of litigation. 23. The Respondent resists the claim of unfair dismissal. 4(b) Where a claim has been accepted, the tribunal must send a copy of the claim form, together with a prescribed response form, to each respondent with a notice which includes information on (a) whether any part of the claim has been rejected, and (b) how to submit a response to the claim, the time limit for doing so and what will happen if a response is not received by the tribunal within that time limit. The respondent must then present a response to the tribunal within 28 days of the date that the copy of the claim form was sent by the tribunal. In the case of Bone v Fabcon Projects Ltd [2006] ICR 1421, EAT, it was held that the 28-day period will be strictly construed as running from the date when the document was actually sent by the tribunal; there is no scope for construing it as running from the date when it was received by the respondent. The legal principle behind this case was that the day when the same was received by the respondent is not relevant, such that the respondent cannot use late receipt as a defence. When an individual receives a statement of claim on unfair dismissal, the particulars of claim are normally on form ET1 and lays the basis on which the employee or the claimant makes he claim for unfair dismissal. The ET1 must be filed with the tribunal and served on the respondent within the required period of time. The respondent must make a response to the claimants claim and the same should be filed by the claimant, and failure to respond can be interpreted as an admission that there has been unfair dismissal. A response to a claim can be made by several respondents as long as their stand on the claim is the same and the claim is the same one, meaning it arose from the same course of action. The single response can also relate to various claims that arise out of the same action, and the reply to the claims should be distinct and clear as to which claim they refer to. The tribunal is to send a copy of the response to all the areas concerned in the case, and set a hearing date to dispose of the matter. The hearing date is also duly communicated to all interested parties, and failure to so may lead to an adjournment. When a judgment has been passed by the tribunal, the person affected is given some time to appeal to the decision of the tribunal if they are not satisfied. However, there is a qualification on the extent to which an application can be lodged, as there cannot be allowed an appeal on a point of fact. All appeals should be made based on points of law only, as it is assumed that the hearing tribunal is competent enough to handle all questions of facts. However, there is no clear line between points of law and facts and this may create confusions, especially when evidence points on differing directions. Such an appeal must be made within 42 days of the date of the decision. Unfortunately, the employment appeal’s tribunal decision is final, but the parties can still apply for the review of the tribunal’s decision by the tribunal. Apart from an appeal, the tribunal also invited reviews on previous cases that have been concluded by the tribunals. The review is basically on the procedure such as the applications of the rules of natural justice in the determination of the matter. A review can also be invited if the person applying for the same is able to show that new evidence has been received, and the evidence is genuine, and there is no way the applicant could have known about the existence of the evidence during the hearing and determination of the case. In such situations, the matter will be deliberated on based on the new evidence that has been collected. In the case of Ladd v Marshall (1954) 3 All ER 745, all the above factors concerning the identification of new evidence was deliberated at length. The appellant must also show that the new evidence would probably have an important influence on the result of the case. Again a number of applications fail due to the EAT considering that the new evidence is not significant enough to justify reconsidering the case. Finally, the new evidence must be apparently credible, though it need not be incontrovertible. In Adegbuji v Meteor Parking Ltd (2011) All ER (D) 39 the EAT stated that the appropriate course is to apply for review, not to appeal the decision. Review is a situation whereby a matter is referred to the same body that deliberated on it, and this is done in light of new evidence that was not previously available during the initial deliberations. The EAT is better placed to decide how significant new evidence is and whether it is credible and therefore any appeal based on the same point will normally be stayed until the review is completed. The EAT is however unlikely to hear an appeal where the same issue has been dealt with under review. It should be noted that it may well be that an appeal cannot be made at all on the basis of just new evidence as under s. 21 Employment Tribunals Act 1996 an appeal can only be made on the basis of a question of law. As regards the costs of matters in the tribunal, the tribunal can assess the costs of the successful party and impose them on the unsuccessful party, and this is upon application by the successful party. In making an application for costs, the successful party must show that the application at the tribunal ha no reasonable chance of success. References The Employment Rights Act [1996] The Employment Rights Act [2008] The Equality Act [2010] Transfer of Undertakings (Protection of Employment) Reg.4(1) Adegbuji v Meteor Parking Ltd (2011) All ER (D) 39 Argyll Coastal Services v Sterling and others UKEATS/0012/11/BI Berriman v Delabole Slate Ltd [1985] IRLR 305, CA Bone v Fabcon Projects Ltd [2006] ICR 1421, EAT Bloxham v Freshfields Bruckhaus Deringer (2007 Britobabapulle v Ealing Hospital NHS Trust (2013)Green v Elan Care Ltd EAT/018/01 Ladd v Marshall (1954) 3 All ER 745 MacCulloch v Imperial Chemical Industries PLC (EAT, 2008) Neidel v Stadt Frankfurt am Main ECJ 2012 Rolls Royce Plc v Unite (2009), Seldon v Clarkson Wright and Jakes (2012) Spijkers v Gebroeders Benedik Abattoir (1986) Seawell Ltd. v Ceva Freight (UK) and another UKEATS/0034/11/BI Thomson v SCS Consulting Ltd [2001] IRLR 801 University of Stirling v UCU [EAT 2012] Read More