Identify and explain what legal risks ABC Ltd might be taking in pursuing redundancies in respect of the four named employees who have raised concerns about their dismissals?

PODCAST – Level 7 Employment Law

The purpose of this podcast is to guide you through the process of answering the assignment for the Employment Law module.

The first thing to note about this assignment is that it is a little different to the other assignments that you will write. In other assignments you will typically be referencing books and journals. In this assignment you will be referencing the law. You will not be referring to academic theory, you will be keeping focused on the law.

There are going to be two main sources of reference – statute and case law.

Statute is what we typically refer to as ‘the law’. For example, the Equality Act 2010 or the Employment Rights Act 1996 is statute.

Case law are the cases that are reported to help us understand how to apply the law. For example, BHS v Burchell [1978] is a piece of case law.

When you reference these sources you do not have to reference where you read about them. So, if you read about BHS v Burchell [1978] on the CIPD website you do not reference the website, you just reference the case. If you read about the Employment Rights Act 1996 in the textbook you do not reference the textbook, you just reference the statute.

This takes a bit of getting used to – because it is different to the other referencing that you will do. When I read your assignment I will expect to see reference to case law and statute, and probably nothing else. If you do reference websites you must reference reputable sources such as ACAS or the CIPD. Do not use general websites, because they can be out of date or inaccurate.

You will need to use quite a lot of cases to answer this assignment. The material in your ICS notes and your textbook should be a good starting point. If you want to look further then the ‘Law at Work’ section on the CIPD website is a good source to use. It might be worth finding out if your employer subscribes to a site such as XpertHR or HR Inform. If so, accessing them will be very useful. However, do not take out a subscription to answer this assignment, they are very expensive.

Another useful source is www.employmentcasesupdate.co.uk. This is a free website, and summarises the judgment from key cases, as well as giving the detail of the judgment. You can sign up to receive daily or weekly updates about cases, if you have an ongoing interest in employment law. To get regular updates about the really important cases and changes to the law then it is also useful to sign up to Daniel Barnett’s service. Daniel Barnett is one of the UK’s leading employment law barristers and he runs a free update service. He only reports on the really important issues, so you do not get deluged with emails – but what he does report is always worth reading.

As well as identifying a variety of relevant cases you must be using them. It is not enough to simply drop the name of cases throughout the assignment.

To explain this let’s go back to the BHS v Burchell case again. This case, as you might remember, concluded that when there is a dismissal situation there must be a reasonable investigation which leads to a reasonable belief that the employee did what is alleged, and a reasonable sanction must be applied.

A student might use this case as follows:

When there is a disciplinary situation there must be an investigation (BHS v Burchell [1978]). That statement is accurate, but it has not used the case. Putting the reference in is little more than ‘name dropping’.

To use the case we might write:

For a dismissal to be fair there must be an investigation into the facts. As set out in BHS v Burchell [1978] there must be a reasonable investigation that leads to a reasonable belief in the guilt of the employee, and then a reasonable sanction.

Here we have explained the relevance of the Burchell case, and applied it to what we are explaining. This is using the case, rather than just giving the name of the case. So, hopefully you now have an understanding of what sources you are going to use and how. We need to move on and look at the assignment. There is a case study, so start by reading it through and highlighting the key points. The key points include anything where there might be a legal issue to address. I suggest that you print it off, and read through it highlighting the relevant points as you go. I always find that is a useful way of identifying the key points.

Do not forget that this is an employment law assignment. You might identify things which, as an HR practitioner, you would do differently. However, do not start to write a general HR assignment or (as the case study is based around redundancy) a general assignment about redundancy and the soft issues associated with the way that you would manage people. You must keep focused on the law.

You will note that there are really two sets of issues in the assignment. There are the issues raised with the redundancies, and then there are the issues that have arisen since the employees have been told about their possible redundancy. In your assignment you must address both sets of issues.

So, you will start by explaining the issues relating to the redundancy of Lydia, Sarah, Bob and Dan. Then you will move on to address the specific issues that have been raised by Lydia, Pam and Diane.

If you explain the legal issues and you give advice, working logically through each of the people, you will address the first two of the three questions in the assignment which are:

1. Identify and explain what legal risks ABC Ltd might be taking in pursuing redundancies in respect of the four named employees who have raised concerns about their dismissals?
2. Advise ABC Ltd on the legal risks that may emerge once redundancies have been confirmed, and whether the impact on other employees (Lydia, Pam & Diane) should present any concerns for ABC Ltd

Then, at the end of the assignment, you need to answer the final question which is:

1. What advice would you give the senior management team when running an exercise of this kind in the future? Justify your answer.

So, let us look at the issues in the structure that I have suggested: Lydia

She is arguing that she has been selected unfairly for redundancy. Particular issues that you need to consider here are:

• Her length of service, and whether it is fair to use this as a criterion
• Her restricted flexibility due to her having a young child

Identify the relevant law that will help you determine whether these are fair criteria to use. Sarah

Again, she is arguing that her selection for redundancy is unfair. Here you need to be thinking about:

• Can she be made redundant whilst on maternity leave?
• How should she be dealt with, given that she is not able to be part of the regular consultation process that is taking place?
• Should she be allowed to work reduced hours?

Bob

Another redundancy selection issue. Think about:

• The reference to retirement. Can he be told that he has to retire at a particular age, or can it be presumed that he will retire at a particular age?
• You also need to consider whether he could bring any claim relating to the sexuality of his son, and the possibility of a decision being related to this.

Dan

This is the final redundancy issue, and here you must think about:

• The diabetes and whether that would be a disability.
• If it is a disability whether it is fair to include absence as one of the selection criteria

Once you have addressed those redundancy issues you might want to conclude with some advice. Alternatively, you could give all of your advice at the end of the assignment rather than splitting it between the two sections.

The next part of the assignment requires you to address the four numbered situations that have occurred – they all appear at the end of the assignment. Let us look at these in order

1. There is an issue about equal pay. Lydia is saying that she is paid less than the men, but a number of reasons have been given –the type of work, the qualifications and the length of service. You need to consider whether Lydia could make a claim against the organisation and think about what you would advise the management in this case.
2. There are then two issues raised in relation to Pam. The first is a potential overload of work. You need to consider whether this is a potential issue and if so, what claim could be made.
3. The second point relating to Pam covers two issues – the cancellation of her leave, and the issues associated with trade union membership. You must address both of these points.
4. The final point relates to Diane. Here you need to consider her employment status, and the implications for her being part of the bonus scheme if she is found to be an employee.

End this section with some advice for management.

It will be quite demanding to keep all of this within 3000 words. Some tips to achieve this are:

• Be succinct. Only address the points that are raised in the assignment, do not drift into other areas which are related but are not fully relevant.
• Do not repeat the question. It is often tempting to explain what has happened before you give the advice. You can presume that the marker knows the case study – you do not have to repeat it.
• Use bullet points where appropriate. Bullet points do reduce the amount of debate that you might engage in, but there are times when they are the best way to list information.
• You do not need to repeat yourself. For example, if you referred to the remedy for a discrimination claim when addressing one point you do not need to repeat this if you were to explain the remedy for another discrimination claim. You can simply say that the remedy is as explained earlier.

Then, finally you need to write your reference section. Here you should have one section which lists all case law you have used, one section which lists all statute and one section which lists all other sources (if there are any).

That then brings us to the end of the assignment:

• Check that you are writing within 10% of 3000 words (not including the references).
• Check that you have referenced statute and case law and not general websites
• Check that you have answered all three questions
• Check through the assignment and then you are ready to submit it