Megan has been employed by Smith Limited for 20 months.

On her appointment it was

agreed that she would only be required to work in the packaging area of the factory. A
month later Megan received a statement of particulars that informed her that she was to
work for 20 hours per week and could be required to clean any part of the factory.

A month later Megan was asked by her Supervisor Steve if she would move from the
packaging area to the distribution bay and work 25 hours a week for a temporary period.
The following day Megan informed Steve that owing to domestic commitments she was
unable to comply with this request. Steve was upset by this response and told Megan that
if she had not changed her mind by Friday she would be regarded as having dismissed
herself.

On Saturday Megan received a letter which stated that the company has decided to
accept your conduct as bringing the contract to an end

Advise Megan as to any legal rights she may have.

Name: MARTIN STANLEY KAMANGA

Student ID number: R2212D15689157
Module Name: EMPLOYMENT LAW
UU-LAW-2000-ZM

Module Tutor: Vivien Chitambala Zimba

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 TABLE CONTENTS

1. Introduction….…………………………………………………………….. 3

2. Rule/Law Applicable……………………………………….…………........ 3-4

2.1. Employers conduct and Constructive Dismissal …………..…….... 3-4

3. Arguments………………………..…………………..……........................... 4

3.1. Available Remedies.……………………….…………………….….. 5

4. Conclusion /Summary…………………….……….……………………..… 5

5. Reference………………………………………..…………………..…..….. 6

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 1. Introduction

The profound facts herein are that Mrs Megan was employed under a fixed term contract
for a period of 20 months and the employment particulars required the employee to work
in the packaging area. Conditions kept on changing without any reasonable grounds, after
a month hours of work increased from to 20 hours per week and she was required to clean
all parts of the building in the factory. The employer kept on changing the terms of
employment which affected the employee negatively in as far as her employment with is
concerned, the employer transferred her location of employment from the packaging area
to the distribution bay and further increased hours of work to 25 hours per week a
condition which amounted to a repudiatory breach of contract affecting the root of the
contract upon change of the employment terms and conditions such as hours of work,
location of work provided in the previous fixed term contract. It is from the same ratio
that has entitled and forced the employee failure to comply with the current harsh terms
and conditions being implemented by the employer a conduct which is repudiatory in
nature that has left the employee in a position to sue for damages without no any option
thereof.

2. Rule/Law Applicable

As already asserted by the facts above any employee who is under a fixed term contract
may have the capacity to sue for unfair dismissal and dismissal may take place before end
of the fixed term contract for similar reasons ranging from change of employment terms
and conditions. The law of resignation through duress states that an employee may be
dismissed if an employer unilaterally imposes a radical different term of condition of
employment which is crucial to the destruction of the old contract and any dismissal of
contract of employment may not be withdrawn immediately upon being effected.
Dismissal is mostly categorized in the following ways as end of fixed term contract,
employer termination, upon completion of limited contract (task performance basis)
including constructive dismissal. According to section 104 subsection 94 of the
Employment Rights Act 1996 states that any employee has the right not to be unfairly
dismissed remedy which is by complaint to the Employment Tribunal,

2.1. Employer’s Conduct and Constructive dismissal

According to constructive dismissal an employee may himself terminate the contract of

employment due to the conduct portrayed by the employer that may lead to a repudiatory
breach by the employer in terms of implied, express, breach of mutual agreement of trust
and confidence. The employee must resign as a consequence of the breach in order to
eligible as having been dismissed through constructive dismissal, according to Lewis Vs
Motor World Garages Limited (1985) this is where an employee who had been demoted
still continued to work but resigned due to criticism and threats, the Court of Appeal held
that he could not dwell much on the mutual duty of trust and confidence. The employee
has the right to terminate the contract of employment in response to a repudiatory
conduct.
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According to Bournemouth University Vs Buckland (2010) where a professor resigned
from work on grounds that his examination papers had been remarked, but before his
resignation the University enquiry findings were in his favor and criticized the exam
marking process. The employment Appeal tribunal held that the enquiry cured the breach
but the court of appeal overturned the decision in that once a breach has been committed
it cannot be undone.

Constructive dismissal occurs where an employer without reasonability conducts himself

in a manner which is likely to destroy the employment relationship of trust and
confidence as required to be shown throughout the employment. In Malik Vs BCCI S.A,
entails that a conduct by the employer does not in itself constitute a constructive
dismissal i.e. a conduct must be such that it undermines the contract relationship. A
lawful conduct by the employer cannot suffice a constructive dismissal in the
circumstances where the employer followed the right procedure that at times may just
result in decrease in employee’s salary. In circumstances where a disciplinary action is
not proportionate to matters in dispute even if the employer followed the right procedures
under a contract it will still lead to constructive dismissal.

3. Arguments

Where there has been a repudiatory breach it cannot be cured, this is evident in the case
of Bournemouth University Vs Buckland (2010) where a University enquiry went further
to say that it was in favor of the employee who was faced with a similar repudiatory
breach in the sense that it supported the employees view that of criticizing the exam
marking process. Their admit to the liability does not compensate the employee but the
action taken to lift such kind of unreasonableness such that the breach cannot be cured
once committed but the employer has to follow the right procedure in consideration of the
employer in that vulnerable condition. Failure to remedy or cure the final decision ending
a contract of employment puts the employer in no other option but to compensate the
employee exposed to their own unreasonableness or harsh terms of employment.

Furthermore the employee has sought a legal advice before competent legal practitioners
and advised accordingly to seek a remedy before an impartial Employment Tribunal for
compensation of loss incurred since the employee heavily depended on this job to sustain
her livelihood. In the above matter Mrs Megan was summarily dismissed from work on
repudiatory grounds which entails a constructive dismissal practicable. Had it not been
for the employers unreasonable conduct of amending the terms and conditions, the
employee would still be employed by the employer (Smith ltd). Whether a conduct is so
serious to warrant a dismissal is a question of fact applying the current standards. That
the action by the employer on summary dismissal happened with immediate effect
leaving Mrs Megan without no any other option but to claim for damages for breach of
contract which is fall short of constructive dismissal and may instead of suffering the
breach sue for loss suffered whilst accepting the employees repudiation.

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 3.1. Available Remedies

Firstly Damages is a remedy available under common law despite the availability of other
remedies under statutory provision. Mostly an employee who has been faced with that
similar issue of unfair dismissal may sue for damages of which the Court is let alone to
determine according to the proportion of the loss suffered. The main aim of the damages
is to put her similar position had the contract of employment not been terminated or
breached. In a fixed contract of employment will be the loss suffered as a result of the
breach and if the breach was due to the employers failure to follow procedures under
employment law, then damages will be limited to the period when the employer could
have taken to follow or to put the right procedures in place and the awards to be taken
into consideration includes private medical insurances, difficulty in finding new
employment, gratuity, accrued pension rights, commissions and note that damages are not
awarded for injured feelings, the employee is under obligation to mitigate on losses.

Furthermore compensation to the employee constitutes of some sought of basic award

which is compensatory in nature. Some of the necessary conditions to be considered as
right by the Tribunal are for the employee to first appreciate the process of conciliation
before commencement of any action and the employee is as well at liberty to chose what
type of remedies to exhaust in the recovery of the said damages e.g. Re-employment,
reengagement, reinstatement which are all complied coupled with compensation and if
the employee is not satisfied with the available remedies by orders of the Tribunal either
reinstatement, reengagement, or reemployment, she may proceed to claim for
compensation which is calculated in the same way as the redundancy payment and take
note that compensation is made proportional as to what Tribunals find just and equitable
in regard to the loss suffered by the employee due to the actions of the employer.

4. Conclusion/Summary

Wherefore in the circumstances it would be favorable to make an informed decision as

with regard to the consequences that would result to end of employment. And following
the right procedures on dismissal by the employer would help reduce expenses. The
employee who is exposed to the unreasonable conduct of his/her employer may have to
firstly appreciate the whole litigation process. This involves going through a conciliation
officer for settlement and if not satisfied she may have to commence an action on claim
for damages due to breach of contract by the repudiatory nature of conduct employed by
the employer. Statutory remedies are as well available remedies and enshrined in the
Employment Rights Act (1996) which requires the employee’s option of either willing to
be re-employed, reinstated, reengaged and if not satisfied with the above orders an award
for compensation might be necessary of which the main purpose is as similar as to
common law remedies for damages to put her in a position she would have been had the
contract not been terminated.

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 1. REFERECE

Bournemouth University Vs Buckland (2010)

Employments Rights Act 1996 Section 107 (94)

Lewis Vs Motor World Garages Limited (1985)

Malcom, S., and David, L., (2018) Employment Law, 8th Edition. Routledge

Malik Vs BCCI S.A.

Ross and Jennifer (2010) Employment Law Essentials. Edinburg University Press