Scenario Training: EMPLOYMENT LAW Scenario Mr Green was employed as a secretary by Delta Ltd in March 2008. In August 2008, he was offered a temporary contract on a new project run by a subsidiary of Delta Ltd, Echo Manufacturing Ltd. He accepted this contract and resigned from his permanent position. The temporary contract ran from August 2008 to February 2009 and was then renewed for a further 6 months. In May 2009, Mr Green was dismissed. Mr Green argues that he has been continuously employed by Delta Ltd for more than a year and is therefore entitled to claim unfair dismissal. Delta Ltd say that there is no claim as he was employed by Delta Ltd for 6 months and then Echo Manufacturing for 10 months Does Mr Green have a claim for unfair dismissal?
Working through using Westlaw UK What is the principle in this case? We need to find out whether it counts as “continuous employment” if the employment is with a subsidiary or associated company. If it counts then Mr Green potentially has a claim for unfair dismissal. On Westlaw, from the Home page, select Natural Language. Within the search box type continuous employment with associated company and unfair dismissal Because this is fairly specific, we’ll just search Cases.
Because we searched using Natural Language you should get 100 results – these will be ranked in relevance order. The first case should be from 1973 – have a look at this case digest to quickly identify if it is relevant to your facts. The section highlighted in green is the most relevant part of the document for your search criteria.
This case looks relevant and talks about “common shareholding” being the key. However, we’re not done yet! If you look at the rest of the Case Analysis document, you can see that all of the legislation cited within this case do not have links. This means that these Acts/provisions have been repealed and are no longer in force.
Once you have found a relevant case, it is important to check that everything that case relied on is still good law! Go back to your search results page and we’ll look for a result which is more recent. As well as looking for a recent case, we want one that is still ‘good law’ so the icons can help us avoid cases which have been overruled/reversed.
Results number 6, the “Da Silva” case is from 2008 so let’s look at that one. We’ll go into the document highlighted and just read the ‘best’ section. This one also looks relevant, so let’s look through the Case Analysis document. Again, it looks like the key to this principle of law is ‘control’ – whether the same person/party controlled both companies. The term “associated employer” is mentioned within the Employment Rights Act s.218(6) and you can just click the link to read that section.
Having read s.218(6), we still need to know what an “associated employer” is so click the Overview document link from the left-hand side. This will detail out status information and related materials for the entire Act. Once the document is open, you can select the Definitions link from the left-hand side to see a list of all terms defined by that Act.
“Associated Employer” is defined in s.231 and we are also pointed towards a case discussing that concept.
Read through the statutory definition and the discussion within the case to ensure you understand the concepts. We can easily go back to the Da Silva case by using the Recent button and we can see within the Case Analysis that in fact our case cites Tice v Cartwright. It is worth remembering that there is no single ‘right’ way to find materials.
Look through all of the other cases listed under “Cases Cited” as there may well be relevant points for your facts covered in those cases. You just need to look at the digest so it’s a quick but important step, particularly if cases have subsequently distinguished or not applied your case. Now you have found a relevant case, it may be worth setting up a Case Alert to track your case so you will immediately be notified if another case cites it, it gets appealed, or if a journal discusses it. Now go back to the Employment Rights Act section we were viewing as we need to check how long the continuous employment need be for to give rise to a claim for Unfair Dismissal. Click the title of the Act from the left-hand side to view the content page for the Act. The ERA is a long Act, so to make it easier to browse, click the ‘collapse all’ button in the top right-hand corner.
Now you should be able to easily identify that Part X is all about Unfair Dismissal, so you can expand just that Part. Scroll through the sections – the icons also assist in seeing which provisions are repealed or not if force.
Section 108 sets out the qualifying period of employment. This section states that the period of employment must be one year. However the icon indicates that there is a Pending Amendment to this section which may affect us, so use the versioning tool to check how this section will look in the future. You can quickly see from the last footnote that the amendment is related to Agency Workers.
Before you finish, it is worth just running quick searches in Current Awareness and News to check that nothing related to your area of law has happened in the last few days. If you run the search continu! /3 employ! this will look for “continuity of employment”, “continuously employed” and “continuous employment”.
Principle of Law: If an employee is transferred or re-employed by an “associated company” then their employment will be deemed continuous even if there is a short break. An “Associated Employer” is defined by s.231 of the ERA and is based upon a test of control. If an employee is continuously employed for a period of one year then they have a potential claim for unfair dismissal.
Remember: Just because you have found a relevant case which is still ‘good law’ does not mean that you can use it in court. Always check deeper. Use the status icons, terms in context and the case digests to quickly scan materials to see if they are relevant or not. Read the cited/citing material – you may find cases which are even more pertinent to your facts. Check the most current material (in News & Current Awareness) as something may have happened today or yesterday which could affect your case. Once you have found relevant materials you intend to use, set up alerts to ensure that if anything does happen, you’ll get emailed straight away. Check details of any pending amendments – you should be aware of what the law will be, as well as what it is now.