Employment Rights in UK Law

Putting the question in the traditional terms of the conflict of laws, what connection between Great Britain and the employment relationship is required to make section 94(1) the appropriate choice of law in deciding whether and in what circumstances an employee can complain that his dismissal was unfair?

Every bilateral contract requires mutual obligations; they constitute the consideration from each party necessary to create the contract. Typically an employment contract will be for a fixed or indefinite duration, and one of the obligations will be to keep the relationship in place until it is lawfully severed, usually by termination on notice. But there are some circumstances where a worker works intermittently for the employer, perhaps as and when work is available.

If the tribunal concludes that the contract is not a sham, it is likely to wish to consider next whether the contract, which may well have been labelled a contract of employment, actually gave rise to an employer/employee relationship. This is not the same question as that relating to whether there is a controlling shareholding. This is not the same question as that relating to whether there is a controlling shareholding.

At the outset the limited context in which the Article 9 point arises should be stressed. It is an unfair dismissal claim brought in an employment tribunal against a private sector employer under the Employment Rights Act 1996 (the 1996 Act). The dismissal arose out of a dispute with the employer about the employee's working hours. In view of the some of the sweeping submissions made to the tribunals below and to this court, it should be made clear what the case is not about.

Clause 3.3 to my mind vividly illustrates the difficulty in approaching the identification of the terms of the agreement by concentrating on what actually occurred rather than looking at the obligations by which the parties were bound. Of course, it is important that the Industrial Tribunal should be alert in this area of the law to look at the reality of any obligations. But to concentrate on what actually occurred may not elucidate the full terms of the contract.

If theemployer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct.

If a person in the hierarchy of responsibility above the employee (here Mr Widmer as Ms Jhuti's line manager) determines that, for reason A (here the making of protected disclosures), the employee should be dismissed but that reason A should be hidden behind an invented reason B which the decision-maker adopts (here inadequate performance), it is the court's duty to penetrate through the invention rather than to allow it also to infect its own determination.