LEVEL 3 - UNIT 6 – EMPLOYMENT LAW

SUGGESTED ANSWERS – JANUARY 2017

Note to Candidates and Tutors:

The purpose of the suggested answers is to provide students and tutors with
guidance as to the key points students should have included in their answers to
the January 2017 examinations. The suggested answers do not for all questions
set out all the points which students may have included in their responses to the
questions. Students will have received credit, where applicable, for other points
not addressed by the suggested answers.

Students and tutors should review the suggested answers in conjunction with the
question papers and the Chief Examiners’ reports which provide feedback on
student performance in the examination.

SECTION A

1. Three rights that employees have under statute could include protection
against unfair dismissal (providing they meet the eligibility criteria), an
entitlement to the minimum wage under the National Minimum Wage Act
1998 or a right to redundancy pay.

2. The minimum wage for an adult aged 18 to 20 is £5.55 per hour and
£7.20 for an adult aged 25 or older (October 2016).

3. A wrongful dismissal can occur where an employee has been dismissed

without any notice or without the correct notice. Where there is no
payment in lieu of notice or the employee has not given grounds for a
repudiation of the contract by the employer, s.86 Employment Rights Act
1996.

4. Victimisation is where the employee has been subjected to a detriment

because they have tried to enforce their or someone else’s right not to be
discriminated against.

5. Two implied common law duties are the duty of obedience, such as where
an employee must obey all reasonable orders, or a duty of good faith, for
example where an employee is not permitted to work for a rival.

6. Under s.86 Employment Rights Act 1996, after 1 month employees are
owed 1 week’s notice for up to 2 years employment then, after 2 years, 2
weeks’ notice are owed. For every additional year, 1 more week’s notice is
owed up to a maximum of 12 weeks’ notice.

7. Under s.19 Equality Act 2010, indirect discrimination is where an Employer

has applied a provision, criteria or practice which discriminates against a
protected characteristic and also applies to a person who does not share
the same characteristic, and therefore puts a particular group at a
Page 1 of 5
 disadvantage. The provision, criteria or practice cannot be shown to be a
proportionate means of achieving a legitimate aim.

8. Excluded categories of employees include, Crown employees, military

personnel or the clergy.

9. Three ways in which a contract may be terminated are by agreement, the

resignation of the employee or by dismissal.

10. Terms that are required to be given to an employee under s.1 Employment
Rights Act 1996 include the name of employer and employee, the date on
which employment began, details of pay and holiday entitlement.

Page 2 of 5
 SECTION B

Scenario 1 Questions

1. (a) To claim unfair dismissal the claimant must establish that they are
eligible to claim. They must show that they were an employee and that
they have two years’ continuous employment. They must also have
been dismissed. The claim must be brought within three months of the
effective date of termination. Also, the claimant must not be employed
in one of the excluded categories, such as a share fisherman.

(b) In order to establish if Matt would be successful in his claim for unfair
dismissal he would firstly need to establish that he is eligible by
satisfying the following tests: that he is an employee, that he has two
years’ continuous employment, that the claim is brought within three
months and that he is not a member of an excluded category. Once it
is established that Matt is eligible to claim, in order for him to be
successful, he must still show that the dismissal was unfair. Misconduct
is a potentially fair reason to dismiss, however in these circumstances
the employer did not comply with the ACAS code of conduct, as there
was no investigation of the allegations. Therefore, in these
circumstances, Matt’s dismissal could be considered procedurally and
substantively unfair and he could be successful with his claim.

2. As this is a misconduct case the guidelines within the Acas code of conduct
and the case of British Home Store v Burchell (1978) should be explained.
The employer should have reasonable grounds to believe that the employee
is guilty after conducting a reasonable investigation to establish all the
facts. Once they have done this, the employer is then required to confirm
the problem in writing and ask the employee to attend a disciplinary
hearing. The employer must also inform the employee of their right to be
accompanied, the outcome of the hearing and the right to appeal the
decision. All of this must be done promptly and consistently.

3. If an employee is successful in their claim for unfair dismissal the remedies

available to them would be compensation, reinstatement or re-engagement.

4. (a) Under s.6 of the Equality Act 2010 a disability is defined as a physical
or mental impairment that has a substantial and long term adverse
effect on a person’s ability to carry out normal day-to-day activities.

(b) Pierre can establish that he has a physical impairment, as he has a

skin condition which has a substantial and long term adverse effect, as
it is permanent. The condition affects his ability to carry out normal
day-to-day activities; he cannot do the washing up, as he is allergic to
the washing up liquid. It is likely, therefore, that this condition
constitutes a disability and he would be likely to succeed with his
claim.

(c) Under s.20 Equality Act 2010 an employer is required to make

reasonable adjustments. Here, the washing up liquid Pierre uses
worsens his skin condition. It would not be unreasonable for the
employer to either change the liquid or provide Pierre with gloves. This
would be a practical and effective change to make, taking into
consideration the employer’s resources. Pierre would not be required
to pay for the gloves or to supply a different product. E.g. Archibald v
Fife Council (2004)
Page 3 of 5
Scenario 2 Questions

1. (a) Constructive dismissal is where the employer has committed a

fundamental breach which has gone to the very root of the
employment contract, effectively forcing the employee to resign.

(b) A summary dismissal occurs where the employer dismisses the

employee immediately, usually for gross misconduct, e.g fighting in
the workplace. The dismissal must be justified or it could lead to a
claim for wrongful dismissal.

2. (a) Conroy may bring a claim for constructive dismissal if he can show that
it is virtually impossible for him to continue in his role. Western
Excavating Ltd v Sharp (1987). He would do this by showing that
Nahid has breached the implied term of duty of trust and confidence.
At the time of the reprimand the door was open so that everyone could
hear and Conroy’s resignation was a direct response to this. Ogilvie v
Neyrfor-Weir Ltd (2003)

(b) Conroy could have a claim based on direct discrimination due to the
comments made regarding his age. Age is a protected characteristic
under s.4 Equality Act 2010 and a one-off comment is sufficient to
bring an action. E.g. Insitu Cleaning Co Ltd v Heads (1995)

(c) If Conroy is successful in his claim, the remedies available to him could
be reinstatement, re-engagement or compensation, a declaration or a
recommendation

3. Nahid is not allowed to deduct pay from Conroy’s wages unless Conroy
authorises him to do so. The deduction of tax and National Insurance is an
exception to this. Ss13-27 Employment Rights Act 1996

4. Nahid is not obliged to write a reference, Spring v Guardian Assurance plc

1994. If he does, it must be prepared with care and skill or he will be liable
for financial losses if prepared negligently.

Scenario 3 Questions

1. (a) Evie could be an employee of the academy because when applying the
control test she:
 is told what to wear by Adam.

The application of the multiple test also indicates that Evie is an

employee as she:
 must provide a personal service;
 has worked there for three years;
 works full time;
 is subject to the company’s disciplinary procedures.

Ready Mix Concrete (1968)

(b) Applying the multiple test Evie could be self-employed as she:

 started work on a casual basis;
 never signed a contract;
 submits invoices;
Page 4 of 5
  pays her own tax and national insurance;
 pays for her own uniform;
 thought she could send her brother in to cover her shift.

2. (a) Two potential reasons for dismissal are capability and redundancy.

(b) Adam could potentially dismiss Harry as Harry has been disqualified
from driving. The disqualification means that Harry no longer has the
qualification to drive. Adam may also consider the potentially fair
reason of illegality. In order to use illegality as a reason to dismiss,
Adam would need to show that the illegality directly affected Harry’s
ability to do the work he was employed to do. In this case it did, as it
is now illegal for Harry to drive a car. However, there must also be no
alternative employment available, as Harry is a prop maker he could
still be employed in this capacity. Appleyard v FM Smith (Hull) Ltd
(1972), Taylor v Alidair Ltd (1978).

3. (a) Two of the potential claims Jason could bring against the academy
include; direct discrimination under s.13 Equality Act 2010. This would
be on the grounds of his sexual orientation, which is a protected
characteristic under s.12 Equality Act 2010. Jason has been dismissed,
which means he has suffered less favourable treatment. The academy
is liable. The other claim Jason could bring would be for harassment
under s.26 Equality Act 2010. Harassment is defined as unwanted
conduct that violates a person’s dignity by creating an intimidating and
hostile working environment. The comments from the other staff
members such as ‘people like you’ or ‘not right to work with children’
could be considered as harassment and therefore the academy would
again be liable.

(b) The burden of proof in a discrimination claim is on the claimant to

prove a prima facie case. The burden then shifts to the employer who
must then establish that discrimination did not take place. S.136
Equality Act 2010.

Page 5 of 5