- Obviously, needs care of legislator. More difficult: when does contradiction exist?
- It’s not a simple logic problem, i.e., that A cannot be. Check out the Dentist Calgary
- E.g 1: must put license plate on care on jan 1 but then also says crime to work on car on jan 1. its harsh, but not against logic.
- How to remedy?
- Find guilty of crime and then remit punishment because he worked under compulsion of statute. But if no value in that, one of two options how to interpret of statute>
- 1. that section making work on that day a crime overrides provision concerning license plates, so that you can postpone installing of license plates on jan 2 or
- 2. license plates provision overrides work prohibition.
- BEST solution: combine these two, that both are within the law.
- Eg. 2: From actual decision in US v Cardiff: president of company of manufacturing food convicted of crim of refusing to permit a federal inspector to enter his factory to determine whether it was complying with Federal Food, drug and Cosmeic Act. Problem, act seems to say that inspector has right to enter factory but that owner has right to keep huim out by refusing permission. Remedy?: —
- —- Interpret act to mean that owner violates act if AFTER granting consent he THEN refuses entry. i.e man doesn’t have to make a promise, but if he does, he may fasten a liability on himself by doing so.
- Supreme Court didn’t accept this, not because of lack of logic, but because didn’t accord with statutory intention. Held that clash between to provisions produced a result too ambiguous to give adequate warning of the nature of the crim: the Court therefore set the conviction aside.
To be entitled to a redundancy payment, the e/e must, within 6 months of the date of dismissal
(s164 ERA 1996):
i. give the e/er written notice of the claim; or
ii. refer the claim to the ET; or
iii. have presented a complaint of UD to the ET (this will have had to be done within
3 months of the EDT)
Effective Date of Termination (EDT) RB 59
The complaint must be presented to the ET within 3 months beginning with the effective date
of termination (EDT). For Redundancy, the EDT is called the “relevant date”
Principle – continuity of employment ends on the EDT which is usually the last day
of work or garden leave
– need to know when your continuity ends to see if you’ve got enough time in
– HR departments check how long e/es have been there and sack using UD if
e/ee has less than 12 months
– If an e/ee receives short notice or PILON he can extend his EDT by the
STATUTORY minimum period (and not contract period) to try and get his
time in to allow him to claim
– If constructive dismissal, you can only extend for UD and not for R
Extending the EDT The EDT is defined by s97ERA 1996 and cannot be extended if the e/ee did
not receive the statutory minimum period of notice. The ET may extend the
3 month period if it considers that it was not reasonably practicable for the
complaint to be presented within 3 months, but in practice it rarely does so
(s111 ERA 1996).
i. M has worked for 5 years, she’s dismissed on 5 th Jan and given 4 weeks’
notice and paid in lieu. Start point for EDT is last day she worked (5 th
Jan) – she only needs to extend if she is getting close to 6 years in (to
get higher award). She could extend by STAT minimum of 5 weeks.
ii. M will have worked for 1 year on 11 th Jan but is dismissed on 5 th Jan and
given contractual 5 weeks’ notice and paid in lieu. She can only extend
by the STAT minimum of 1 week which is OK for UD as it takes her EDT
to 12 th Jan and therefore 12 months service.
M resigns on 10 th Jan and claims UD and R. She would have been employed 2 years on 14 th Jan.
UD is not a problem, she could have extended by the STAT minimum but no need as she can
claim as she has 12 months. She cannot claim for R as she does not have 2 years in and cannot
extend (as constructive dismissal)
1 IS THE EMPLOYEE ELIGIBLE ?:
i. employee ?
ii. aged between 20-65 years (or below ‘normal’ retirement age if there is one
and it is under 65) ?
iii. 2 years continuous service ?
2 HAS THE EMPLOYEE BEEN DISMISSED ?
i. actual ? ie, you’re sacked
ii. constructive ? ie, a fundamental change of terms and conditions of
employment without the individual’s consent (pay
reduced, hours/place of work changed, role, specific
3 WAS THE DISMISSAL BY REASON OF REDUNDANCY ? which is it ?
The definition of redundancy is contained in s 139(1) of the ERA 1996:
‘ For the purposes of this Act an employee who is dismissed shall be taken to be
dismissed by reason of redundancy if the dismissal is wholly or mainly
(a) the fact that his employer has ceased or intends to cease –
(i) to carry on the business for the purposes of which the employee was
employed by him; or
(ii) to carry on that business in the place where the employee was so
(b) the fact that the requirements of that business –
(i) for employees to carry out work of a particular kind; or
(ii) for employees to carry out work of a particular kind in the place
where the employee was employed by the employer, have ceased or
diminished or are expected to cease or diminish.’
Looking at this definition, it can be seen that redundancy occurs in three main
situations: job redundancy, place of work redundancy and employee redundancy.
i. job redundancy – ie, business goes bust
Bass Leisure v Thomas (1994): theTest
if there is a mobility clause, the test is whether the e/er ceased
operations at the place where the e/ee was in fact employed and
NOT any place where e/ee might lawfully be sent under his
ii. place of work redundancy – ie, relocated
Hightable v Hurst (1997):
Agreed with Bass but suggested that where e/ee had a mobility
clause and was told to move by e/er cos of reduction in work
where they were actually working, any refusal by e/ee may be a
valid reason for dismissal due to gross misconduct
iii. employee redundancy – known as “bumping” or re-shuffle
– use 3 stage test from Safeway v Burrell (1997) in the EAT
i) was there a dismissal ?
ii) if yes to (i) have the requirements of the business for e/ees to
carry out ‘work of a particular kind’ ceased or diminished ?
iii) was the dismissal at (i) caused by (ii) ? if yes it is a redundancy
4 DID E/ER OFFER SUITABLE ALTERNATIVE EMPLOYMENT OR OLD JOB BACK ?
2 stage test:
i. offer made: made by e/er ?
before the end of the contract ?
to commence within 4 weeks ?
e/ee has a 4 week stat trial period to try out the new job (see
5 DID THE E/EE UNREASONABLY REFUSE THE OFFER OR UNREASONABLY
TERMINATE DURING THE TRIAL PERIOD ?
ii. is the offer suitable ?
1 st = BURDEN – it is for the e/er to show his offer was reasonable and
if the e/ee refuses, it is still on the e/er to show e/ees
refusal was unreasonable
2 stage test:
e/er = objective test: is it reasonable ? is it same pay,
benefits, status, responsibility, hours, prospects,
e/ee = subjective test: is it reasonable/unreasonable in circs to
refuse to accept the offer?
does it involve a move which e/ee
cannot comply with ? ie e/ee has an
elderly parent to look after, will it affect
e/ee’s ability to pay the mgage…..
Practical Issues for E/ee: – take alternative job but ask for
different hours, pay, etc
Statutory trial Period – he can agree to do the new role under
4 week stat trial period to see if it will
work and if it doesn’t he can still resign
claiming redundancy – PLUS he doesn’t
have to tell e/er he is going on the stat
trial period !
dependent on age: i. 1.5 gross weeks pay for each complete year of
continuous employment during which the e/ee
was aged 41 or over
ii. 1 weeks gross pay for each earlier complete
year during which the e/ee was aged 22 or over
iii. ½ week’s gross pay for each earlier complete
year during which the e/ee was aged 18 or over
REMEMBER – week’s gross pay is subject to a maximum of E270 for
dismissals on or after 1.2.04
– claim is for a maximum of 20 years
– maximum award of £8,100 for dismissals on or after 1.2.04 (ie,
£270 x 1.5 x 20 = £8100)
6 General points
E/er should always give as much warning as possible.
Need a fair selection process to decide who goes – look at performance, time keeping, etc
Nowadays, cant really use “last in 1 st out” policy….
Must involve a fair method of selection based on objective criteria and apply these fairly
Must involve consultation with e/ees affected and any recognized trade unions
Wherever possible, try and offer an e/ee re-engagement – Visit Abogados de accidentes today
A dismissed employee may have more than one potential claim against his employer.
WHERE EACH CLAIM CAN BE BROUGHT
Wrongful dismissal The wrongful dismissal action is a breach of contract action which may
be brought as a court action or pursued in an employment tribunal.
Unfair Dismissal The unfair dismissal claim is pursued only in an employment tribunal.
WHAT OVERLAPS ?
UD and WD a dismissal that is both unfair and without proper notice or within a
fixed term can give rise to both an unfair dismissal claim and a wrongful
Red, UD If an employee is unfairly selected for redundancy, he will be entitled to a
redundancy payment and be able to present an unfair dismissal claim.
Red, UD and WD All three claims of wrongful dismissal, redundancy payment and unfair
dismissal would be available to the employee unfairly dismissed without
proper notice by reason of redundancy.
Short Notice Period In the case of a less well paid employee who is only entitled to a short
period of notice, the unfair dismissal claim is usually more advantageous
as compensation for future loss can extend beyond the employee’ s
DEDUCTIONS- As provided by Notary public solicitors in London
WD and UD If both claims are brought, and both succeed, the basic principle is that
compensation will not be awarded for the same loss twice. The tribunal
will deduct the breach of contract damages awarded from the
compensatory award for unfair dismissal.
Red payment and UD
The redundancy payment will be set against the UD award. Usually it will simply offset the basic
award, but if it exceeds the basic award (eg because the basic award has been reduced by
contributory fault) the remainder will reduce the compensatory award. The excess redundancy
payment should be deducted after the other deductions (eg for contributory fault) have been
Red payment and WD
Since a redundancy payment is a reward for past services, and a WD payment is an award for
future loss, a redundancy payment is not taken into account in awarding damages for WD.
A discriminatory dismissal (DD)
If a person is dismissed for reasons relating to sex or race or disability, this is not automatically
unfair but, in practice, will often be found to be unfair.
UD and DD
A claim for unfair dismissal may be pursued alongside a discrimination claim. Discrimination
awards are not subject to any maximum figure and can include an award in respect of injured
feelings. In addition, no eligibility conditions need be satisfied.
As against this, the award for UD includes a basic award in addition to compensation.
Alternatively, re-engagement or reinstatement may be ordered.
If both claims are pursued, s 126 of ERA 1996 provides that compensation cannot be awarded
again in respect of any loss or other matter which has already been taken into account in dealing
Focus of postscript is on Dworkin, because he has argued that nearly all the distinctive theses of this book are radically mistaken, and called into question the whole conception of legal theory and of what it should do which is implicit in the book.
- The Nature of Legal Theory
- my book is general and descriptive, not tied to any legal system, but seeks to explain account of law as complex social and political institution with rule governed aspect.
- Dworky on other hand, central task of legal theory is ‘interpretive’ and partly evaluate, since it consists in identification of principles which both best “fit” or cohere with settled law and legal practices of a legal system and also provide the best moral justification for them, showing law in “its best light”. For Dworky “jurisprudence is silent prologue to any decision at law”.
- Dworky and my own are very different, and no reason why there must be conflict. Dworky devotes Laws Empire to comparative merits of three diff accounts of way in which law “past political decisions” justifies coercion, and so yields three different forms of legal theory which he calls “conventionalism”, “legal prag” and “law as integrity”.
- Hart objects that positivist legal theory (like concept of law HLA Hart) can be re-stated as such an interpretive theory.
- Now Dworky refined himself, saying that jurisprudence is general part of adjudication only true about question of sense.
II: Nature of Legal Positivism
(i) Positivsm as a Semantic Theory
- Dworkin finds a lot of errors in Hart’s version of legal positivism. Most fundamental: view that truth of propositions of law such as those that describe legal rights and duties depends only on q of plain historical fact including facts about individual beliefs and social attitudes.
- Dwork spends lot of time of criticism legal positivism to show that theoretical disagreement as to what constitutes the grounds of law is a prominent feature of Anglo American legal practices.
- How did positivists arrive at confused view? In Dwork mind, they use word law and mean different things and talk past each other.
- Hart says nothing in his book Suggests that he is plain fact positivist and suffers from semantic sting.
- Dworkin wrong to ascribe plain fact positivism to me: Dwork misrepresents my form of legal positivism. He treats my doctrine of ROR as requiring that criteria which it provides for identification of law must consist only of historical facts. Though my examples used may be so, I expressly state at page 72 that in some system of law like US the ultimate criteria of legal validity might explicitly incorporate principles of justice or substantive moral values.
(ii) Positivism as an Interpretive Theory
- Dwork second account of plain fact positivism does not treat it as a semantic theory or as based on linguistic considerations but attempts to reconstruct it as a form of Dworkinian interpretive theory called Conventionalism. In this theory the positivist, in guise of an interpretive theorist committed to showing law in best light, presents the criteria of law as consisting of plain facts, uncontroversially fixed not by vocab of law but by conviction which is hared by judges and lawyers.
- But wrong to say this interpretivist account of positivism as conventionalism is plausible reconstruction of Hart’s theory. 2 reasons:
- Hart theory not plain fact since it has values among its criteria of law.
- Justification of coercion not main point of law according to Hart.
- Read the article from Abogados de accidentes
- Dworky sticks Hart into conventinliast camp (and rejects it) because of Chapter V section 3 of Harts book, but Hart says that nowhere makes any claim that legal coercion is only justified when it conform to all the rules laid out therein (stagnates, uncertainty, inefficiency…)
- “Nothing in my theory Suggests that general point or purposes of ROR – or law for that matter – is only justification for coercion“
- This book is about theoretical disagreement in law” – pg 11 Trying to see what this is all about.
“I am concerned with issue of law, not reason judges may have for tempering their statements of what it is.” It centers on judges in black robes.
- Critics may say project is misapplied and incomplete and obscure. But, “theories that ignore structure of legal argument for supposedly larger questions of history and society are therefore perverse.”
- “This book take up the internal participants point o view, tries to grasp argumentative character of our legal practice. “ “We will study formal legal argument from judge’s point of view.” Citizens and politicians also important, but judicial argument more explicit and more influential on legal discourse.
THE REAL WORLD
- Let’s see how PF thesis distorts legal practice by looking at actual cases.
- Elmer’s Case
- Elmer murdered grandfather in hope of getting will he knew he left for him. Caught, put in jail. Residuary legatees were grandfathers daughters, they sued administrator of will, demanding that property go to them not Elmer. New York statutes of wills was silent. Judges felt compelled by law, must give to elmer, but disagreed about what law actually was, what statute required when properly read.
- How possible? Like a poem, we agree on literal words, but not the second sense. So judges disagreed on impact of words of statue on legal rights of elmer, and daughters because disagreed about how to construct real statute.
- Dissenting Judge Gray: Proposed literal reading, must look at statute context-independent, voted for Elmer. Much to say for this, because we don’t know if grandfather changes mind, can’t substitute own opinion. Also, would be double punishment if Elmer, after jail, also looses inheritance.
- Majority Judge Earl:
- *“It is familiar canon that a thing which is within intention of makers of statute is as much within statute as if it were within the letter; and a thing in letter but not in intention, is not in the statute.”. And here, with murderers, legislators had no intention either way. Earl meant that statue doesn’t have any consequences the legislators would have rejected if they had contemplated it.
- Also, must construct statute to make larger legal order coherent. Here – no one should profit from their own wrong.
- *Comment: Most important point from case: dispute was not about whether follow law or adjust law. It was dispute about what the law was, about what the real statute really said.
- The Snail Darter Case
- Facts: Endangered Species act gave minister of interior special power to make sure nothing happens that endangers it. Conservationists convinced it to protect the snail darter, a fish of no importance, and stop a building project by TVA. Tenessee Valley authority argued that because project substantially underway, act doesn’t apply and cited acts of Congress in support.
- Chief Justice Warren Burger: found that dam must be halted. Said that when text is clear the Court has no right to refuse to apply it just because it believes the results silly. But rejected Earl’s principle about way in which congressional intention is relevant. “Not for us to speculate on whether Congress would have altered its stance had specific situation been anticipated.” (bit like Gray, but less rigid)
- Justice Lewis Powell: Courts should accept an absurd result only if they find compelling evidence that it was intended. (a bit like Earl’s, but substitutes common sense for principles of justice found elsewhere in law).
- Comment: Again, they disagreed about the question of law; about how judges should decide what law is made by particular text enacted by Congress when congressmen had the kinds of beliefs and intentions both justices agreed they had in this instance.
WHY IT MATTERS
- Mr Learned Hand, “I fear lawsuits more than death or taxes.” In fact, civil suits can be more consequential than all but most momentous criminal trials.
- Moral dimension: risk of public injustice, e.g., innocent person convicted of crime.
- IN UK and US, judicial decisions affect more people because law becomes what judges say it is. (Constitutional position of Supreme Court in US, e.g. In 1954 decided cannot segregate schools by race, led to big social revolution).
- UK Eg.
- 1: 19th English judges said factory worker cannot sue employer for compensation if injured through carelessness of another employee because he “assumes risk fellow servants may be careless.”
- 2: 1975, HL fixed time Cabinet minister must wait before publishing his memoirs.
- UK Eg.
DISAGREEMENT ABOUT LAW
- Thus, matters what judges think law is. Lawsuits raise 3 issues:
- Issue of fact: What happen?
- Issue of Law: What is pertinent law? Does it allow damages?
- Political morality/fidelity: Is denying compensation unjust, should judges ignore law?
- Judges usually disagree most about issue 2.Mostly in two ways
- Empirical Disagreement: May agree about grounds of law (what lays beneath every proposition of law, e.g., 55 miles in california is proposition, the ground of law is saying aye in state legislature) but disagree if those grounds are in fact satisfied in case
- Theoretical Disagreement: May disagree about grounds of law, which underlie propositions.
- Empirical disagreement simple. People disagree about what words are in statue books same way they disagree about any other factual matter.
- Theoretical disagreement: We see how judges disagree about what law really is although they agree on what the statute books say.
- Lay public unaware of this problem, they are more concerned with fidelity. But fidelity not live issue in uk/us courts.
- In trivial sense, judges make law. Though they say that what they do is just correct perception of true grounds of law which may not have been recognized before. Thus, invent v discover debate is essentially theoretical disagreement in disguise. Why, because would be easy if no theoretical disagreement, could just check what law was. So while invent/discover debate part of theoretical disagreement, but doesn’t help us because real issue never rises to the surface.
THE PLAIN-FACT VIEW
- “Plain fact view”: Our jurisprudence has no plausible theory of theoretical disagreement in law. Most legal philosophers evade question, say that it is an illusion, and that lawyers and judges all agree on grounds of law.
- Claim: law only matter of what legal institutions have decided in past. And when they have what looks like theoretical disagreements, they are really disagreeing about issues of morality and fidelity, about what it should be, not what it is.
- Popular (conservative) view: Judges must follow law not improve it. If they don’t, they are bad judges, usurpers, destroyers of democracy. Other (progressive) view: Judges should improve law, bad judge is the mechanical judge.
- Note, academic, plain fact view, accepts that sometimes there is no law at all. This again gives rise to division of opinion. How should they fill gaps?
- Jerome Frank draws radical conclusion from sophisticated version of plain-fact view: say that past institutional decision almost always vague of ambiguous or incomplete – there is never really law on any topic or issue, only rhetoric judges use to dress up decisions actually dictated by ideological or class preference.
- Not all accept plain fact view. Some that reject it indulge in unstructured “craft”, mysteriously, romantic, essentially what judge o the day thinks better or worse. But not enough discipline in that view to call it any developed theory.
- Later will show evidence why plain fact view is evasion rather than theory. But if correct, if judges. Lawyers, laymen, etc have no good answer to Question of how theoretical disagreement is possible and what it is about, we lack apparatus for intelligent criticism of what our judges do. Generally, governed do not understand courts nearly well enough.