Health and Safety Dismissals – steps to go through – s100 ERA

These figures are provided by the Notaries of London

normal circs his claim would be scuppered

IT CANT BE BOTH s44 and s100 !!!!!!!

It’s s100 if e/ee has lost his job

It’s s44 if e/ee is still in his job but is suffering a detriment

 No continuous employment needed – important as its normally new people who


 Automatically unfair (s.100 ERA) to dismiss an employee if the employee:

o Carried out activities in connection with preventing or reducing risks to H&S

at work, where the employer designated the employee to carry out activities;

o Performed or proposed to perform any functions as a H&S rep;

o Brought to employers attention circumstances connected with his work which

he reasonably believed to be harmful or potentially so;

o Left, proposed to leave, or refused to return to his place of work or any

dangerous part of his place of work, which he reasonably believed to be


o Took or proposed to take appropriate steps to protect himself or others from


o Participated reasonably in any consultation with his employer or in election of

a H&S rep.

 It’s irrelevant if its reasonable or not, the e/er cannot argue fairness and the ET wont

consider it if the dismissal is due to H+S

 Burden of proof is on the employee to prove principal reason for dismissal is H&S, if

ET happy with this, it is deemed automatically unfair.

Different assessment of awards:

Where employee is a H&S rep:

 Minimum basic award of £3,600

 Additional award of between 26 – 52 weeks pay cab be made where employee

requests reinstatement or re-engagement and either:

o The tribunal refuses to make an order, or

o The tribunal makes an order but the employer refuses to comply.

 No upper limit on award – H+S e/es get more than normal people

 Interim relief – employer can be forced to pay salary in the interim until the

settlement of the case. The claim must be brought no later than 7 days after the

EDT. The C must satisfy the tribunal that the substantive claim for UD on H&S

grounds is likely to succeed. Once satisfied the tribunal will ask the employer

whether he is willing to reinstate or re-engage the employee. If not agreed the

tribunal will make an order for continuation of the contract of employment

(contractual pay and benefits) together with compensation from termination until


settlement of complaint. The money paid does not have to be paid back even if C


Other employees dismissed may be entitled to an additional award for failure by the employer

to comply with an order to reinstate or re-engage, again there is no max limit placed on

compensatory awards.

Right not to suffer a detriment in H&S cases – s44 ERA

Principle e/ee raises H+S and in the future the e/er overlooks them for promotion and

doesn’t give them bonuses, etc – covered by s44 ERA

IT CANT BE BOTH s44 and s100 !!!!!!!

It’s s100 if e/ee has lost his job

It’s s44 if e/ee is still in his job but is suffering a detriment

Employee entitled not to be subject to any detriment by an act or deliberate failure to act by

his employer on the same grounds as exist for automatically UD, s.44 ERA 1996.

Dismissal is not a detriment and therefore s.44 does not apply. This makes the right to be

UD on H&S grounds (s.100) and the right not to suffer a detriment mutually exclusive (s.44).

Detriment under s.44 amounts to disciplinary procedure etc.

An employee may present a claim on the ground that he has suffered a detriment in

contravention of s.44 provided it is presented within 3 months beginning with the date of the

act. If complaint upheld, the tribunal will make a declaration to that effect and also award

compo to the employee of such amount as it considers to be just and equitable in all


IT CANT BE BOTH s44 and s100 !!!!!!!

It’s s100 if e/ee has lost his job

It’s s44 if e/ee is still in his job but is suffering a detriment


  • A Challenge
    • Though sounds subjective what just described, has strong objective element: think their interp. Is BETTER not only different from others. This doesn’t mean there aren’t different views about what a work of art like Hamlet is about, that is a question about challenge, not complexity.  Can one interpretive view be objectively better than another when they are not merely different?
    • Most people think yes, that some are better than others. Driven by truth. Like person who discovers new reading of Paradise Lost., and others who cling to older view have good reason to change their mind. Others deny this, they say, just like with hard cases, cannot be one better than another, just different.
    • Much of what said, idea of interpreting practice as best in can be, might be thought to support skeptical view right-wrong view, beccause idea that there can be right answer about moral or social value strikes people as strange.
  • Internal and External Skepticism
    • Let’s measure scope and force of this skeptical challenge. Crucial distinction: skepticism within the enterprise of interpretation – substantive position about best interpretation of some practice or work of art – and skepticism outside and about that enterprise.
      • g: You say Hamlet is best understood as play exploring obliquity:
        • Internal skeptic: “No, hamlet too confused and jumbled to be about anything” (addresses substance of claims, because one view IS right)
        • External skeptic: “I agree, but of course this is only an opinion we share, we cannot sensibly suppose that Hamlet’s being about delay is an objective fact we have discovered locked up in nature of reality.” (His theory is about the second level classification of claims like Hamlet is about x, y, z).
      • Would external skepticism condemn the belief interpreters commonly have: that one interpretation of some text or social practice can be on balance better than others, that there can be “right answer” to question which is best even when it is controversial what right answer is.  Depends on how these “objective” beliefs are understood —
        • g I say slavery is wrong, then add second group of statements: its objectively wrong, not just opinion, but true even if I thought otherwise, it is the right answer.  The connection between these two judgments is that we use language of objectivity not to give our ordinary moral interpretive claims bizarre metaphysical base, but to REPEAT them.
      • Thus – no important difference in philosophical category or standing between statement that slavery is wrong and statement that htere is a right answer to question of slavery, namely, that it is wrong. I cannot hold first opinion as moral opinion without holding the second.
      • Crucial point: “objective” beliefs most of us have are MORAL, not metaphysical, beliefs, that they only repeat and qualify other moral beliefs. Note that this in no way weakens these beliefs or makes them claim something less or different from what they might be thought to claim. If anything is made less important by that point, it is external skepticism, not our convictions.


  • Which form of Skepticism?
    • How understand the skeptic who says there cannot be right answers in morals or interpretation? This skeptic says that different people have different opinions of beauty and justice, thus they cannot be properties of world independen of Attitude. —- but note, this skeptci thinks his attack has force of internal skepticism – for he insists that people interpreting poems or deciding hard cases should not talk as if one view is right —- CANNOT HAVE IT BOTH WAYS!
    • This critic attacks us by saying we make claims we do not make, WE do not say that interpretation is like physics or that moral values are “out there” or can be proved. We only say that Hamlet is about delay and that slavery is wrong.  The practices of interpretation and morality give these claims all the meaning they need or could have.  —- so, is this critic actually accusing us of moral rather than metaphysical mistakes?
    • Yes, they become internally skeptical arguments because they assume some general and abstract moral position – that moral claims have genuine moral force only when they are drawn from mores of a particular community, eg.
    • Metamorphisis ist costly, as skeptics arguments no longer a priori. His skepticism can no loner be disengaged or neutral about ordinary moral opinions. If he really believes, in the internally skeptical way, that no moral judgment is really better than any other, he cannot then add that in his opinion slavery is unjust.
  • Conslusions and Agenda
    • End this section with apology and advice. Argument so far has been entirely defensive. “we marched up a hill and down again.” Skeptics say interpretive attitude is mistake, because wrong to suppose that one interpretation of a social practice can be right or wrong or really better than another.
      • BUT: that complain on model of external skepticism, the argument is confused. If construe more naturally as piece of global internal skpeticism, “then all the argument waits to be made”.
    • Skeptical (external) challenge has strong hold on lawyers. They say “that’s your opinoin”, or “how do you know” requiring a thundering knock down proof no sane person can refuse.   And if no argument of that power is there, they grumble and say jurisprudence is subjective only.
      • This is waste of time, only internal skepticism merits time, and it must be earned by arguments of same contested character as the argumnets it opposes.
    • Now, I’ll offer arguments what makes one interpr of social practice better than another. These arguments will not, because cannot, be demonstrations.
      • “You must then ask yourself whether it is your opioin too. If it is, you will think my arguments are sound and that other conflicting ones are unsound.” pg. 86 (— he is basically showing what he is describing here with example of own book and arguments)

“The exercise at hand is one of discovery: discovering which view of sovereign matters w discuss sorts best with convictions we each, together or soverally, have and reatin about best account of our common practices.” p. 86 – abogados de accidentes de trafico



Cotterrell Politics of Jurisprudence, Chs. 3 and 4

  • Austin’s main aim was to separate law from other doctrines such as morality or politics, and defined law as “a rule laid down for an intelligent being, by an intelligent being having power over him.” Power and “commands” are at the centre of the Austin/Bentham definition, though Bentham, unlike Austin, was willing to include stipulated rewards as an alternative to sanctions. Austin denied this possibility, since he thought law was to do with commands, and commands are different from incentives. He claimed that nullity was a sanction (to get round the power-conferring problem). Hart’s criticism on the basis that (1) Austin’s single coercive model ignores the variety of laws and (2) ignores the different purpose of laws, as demonstrated by the variety of sanctions, is rejected by Cotterrell on the grounds that Austin was merely seeking to demonstrate characteristics familiar to all laws, NOT claim that all laws serve the same purpose. Laws repealing other ones were not laws in a real sense, since they commanded nothing.
  • Austin and Bentham both require generality for a law to exist. Generality relates (1) to the category of addressees, and (2) to the acts prohibited/required by the rule. I.e. not merely a direction on one specific case or action, nor to a particular individual. Austin therefore sees a law as a technical instrument that should aim for utility, NOT as a device to maximise liberty (as many liberal theorists see law).
  • Austin/Bentham believed that liberties were no more sacred than other types of law, and should only be granted where to do so would maximise the common good.
  • Austin’s conception of the sovereign is the office or institution that is sovereign, NEVER the individual person in charge.
  • Characteristic’s of Austin’s sovereign: There can only be one sovereign in any society and it must be determinate (i.e. clear). Also a sovereign cannot issue commands to himself. NB This is NOT only applicable to absolute monarchs: The sovereign body can be split up into several parts so that the executive and legislative powers are in reality exercised by many different bodies, while there are still constraints, just non-legal ones. Austin locates sovereignty in the monarch, lords and electorate of the Commons. BAD for legal purposes, parliament, not the people, is sovereign. Also, how can the public be the subjects of commands made by them? Austin himself said that the sovereign could not be bound by laws. Possibly he is confusing the sovereign with the sources from which the sovereign derives its authority.
  • The problem of the sovereign not being able to bind itself i.e. legally illimitable, may be overcome: If individual parts of the sovereign are limited, that does not mean the sovereign as a whole has been legally limited. A good example would be the parliament acts, limiting the powers of HL, although the power of the queen in parliament altogether has not changed.
  • Judges etc are regarded by Austin as delegates of the sovereign, whose actions are those tacitly commanded by the sovereign (so how to explain judgments to which the queen in parliament is opposed?). He regards judge-made law as no different to other secondary legislators. What does this mean where the courts rule against their sovereign? Does the sovereign just voluntarily agree to obey? No other explanation from Austin, since a sovereign surely cannot be obliged to obey their delegates.
  • The motives behind Austin’s power-based view of law are a belief in the ability of the state to improve lives, given sufficient power and utility.
  • Wide discretion would undermine Hart’s concept of law as a collection of rules


  • Penner Schiff and Nobles Jurisprudence & Legal Theory: Commentary and Materials Chs. 3 and 4 (Lacey: Modern Positivism: HLA Hart and Analytical Jurisprudence)


  • Hart claimed to be employing both analytical jurisprudence and descriptive sociology.
  • It is a mix of empiricism (looking at the way in which things actually happen) and what Cotterrell labels “conceptualism” (interpreting law by its concepts).
  • The internal aspect is a “critical reflective attitude”- manifested in the account people give of their own behaviour or that of others.


Harris Legal Philosophies, Ch. 9 (explanation of Hart’s Concept of Law)

  • Hart believed in examining legal concepts by the words used to represent them and how those words were used in ordinary language, inside and outside of the law. Use of words could be sociological evidence for something. From language analysis we discover we deduce sociological information.
  • If a group has a rule, 2 things exist: (1) Members perform/refrain from performing certain actions, and (2) there must be a “critical reflective attitude” shared by the majority towards the action in question. (1) alone would merely be habit. (2) – the internal attitude-can be demonstrated by demands for conformity e.g. normative language such as “you ought to do this”. When the pressure to conform is great, the rule is an “obligation rule”.
  • Obligation rules differ from other rules in three respects: (1) the level of pressure for compliance; (2) their association with a prized feature of social life; (3) it is generally recognised that they may cause conflict with a person’s interests.
  • Obligation rules that are enforced by physical sanctions represent a kind of law; obligation rules that don’t go that far are moral rules.
  • A society with only obligation rules cannot change its rules nor decide disputed issues, since it has no means by which to do so. Therefore society needs rules of change, adjudication and recognition. Obligation rules = primary rules; Rules of adjudication, change etc = secondary rules. Secondary rules are those that confer power, NOT impose obligations. A legal system comprises both types of rules.
  • NB an objection to this analysis of rules is to say that some rules are personal, not social, e.g. if I am a vegetarian, nobody may be compelling me to do it, and yet it is a rule to which I subject myself. Therefore, Hart’s analysis only applies to rules which have some degree of social coercion.
  • Hart’s internal element does not depend on a moral approval of the rule- acceptance may be based on fear, habit, self-interest etc
  • Hart doesn’t define what a legal system is, but says that the union of primary and secondary rules.
  • The rule of recognition is the idea that a law is only valid once it has passed through the various stages that the officials etc of the day recognise as being necessary for a law to be valid e.g. if in Britain everybody recognises that “what the queen enacts in parliament is law”, then that is the rule governing the validity of laws.
  • The rule of recognition exists as “social practice”. This social practice, according to Hart, is to be identified by looking at whether members of a group criticise those who do not comply with it.
  • Rules of recognition provide criteria by reference to which rules are identified as legal.
  • For a legal system to exist, there have to be (1) valid rules must be obeyed and (2) the rules of validity/change/adjudication must be accepted by its officials- i.e. obedience of primary rules and recognition of secondary rules by officials.
  • The point of rules on change, adjudication etc is to avoid the problems of a pre-legal society (that rules cannot change, causing rigidity and uncertainty about whether rules still apply). This approach is diagnostic i.e. it allows us to look at a country and determine whether a legal system exists.
  • Hart’s said that what the law “is” depends on both the “external” idea of “being obliged” (i.e. coercion, threats etc), and the “internal” idea of “being under an obligation” (feeling of a sense of duty to act in compliance with a law). However, many argue that the internal duty necessarily involves a moral (normative) value judgment. By contrast Raz argues that moral/normative judgments have nothing to do with what law “is” i.e. there is a difference between asking whether a law exists and whether it is a good law. Raz says there is no general moral argument for obeying the law- whether a law exists is just a function of whether the law-making institution has “authority” to do so.