When a person is dismissed from their employment, the process must be both fair and legal or it will be deemed unfair dismissal; even if the dismissal was justified.
What Does Unfair Dismissal Mean?
The term “unfair dismissal” is used to cover four main situations where a person is fired illegally while in a protected position:
Unfair dismissal is illegal. Image by Thrillho, via Flickr
- The employer’s failure to adhere to the statutory disciplinary procedure;
- Any dismissal the law deems “automatically unfair”;
- A person being dismissed for exercising, or wishing to exercise, a statutory right; and
- Any other reason the Tribunal deems is unfair.
The Statutory Disciplinary Procedure
Following the enactment of the Employment Act 2002 there has been a standard disciplinary procedure in English law, which requires a clear procedure is to be followed when a person is fired. It is acceptable for employers to expand on this process to grant employees more rights but they cannot reduce or otherwise atrophy the rights granted under statute.
Whether they expand on the statutory process or not, employers are required to make their disciplinary procedure available in writing.
The Employment Act 2002 outlines the following disciplinary process for when a problem arises:
- A written statement must be issues to the employee. This should give details of the problem that has caused the disciplinary process to be undertaken, and must invite the employee to a meeting where they can discuss the matter.
- Hold a meeting where the problem can be discussed. The employee must be allowed to have a colleague or union representative present, and the meeting must only be held after a reasonable amount of time has passed, to give the employee time to consider their response.
- After the meeting, the employee must be informed of the employer’s decision. If the decision is not in the employee’s favour, they must be informed of their right to appeal.
Not Everyone is Protected From Unfair Dismissal
Unless a person is dismissed for an automatically unfair reason, they cannot claim unfair dismissal unless they: are an employee (which is poorly defined in law); they have actually been dismissed (which can be difficult to prove in cases of constructive dismissal); and they have been employed continuously for no less than one year at the date of dismissal.
When is Dismissal Fair?
Employment law in England and Wales recognises the fact that sometimes it is necessary to dismiss an employee, and therefore grants protection to employers from unfair dismissal in specific circumstances. However, it should be noted that even where the dismissal could be called fair in law, an employee may still have a case for unfair dismissal if the procedure followed to fire them incorrect.
The reasons the law deems fair for a person to be dismissed are where:
- there is an unresolvable personality clash;
- the employee is continually late for work;
- the employee is incompetent and retraining is ineffective or impossible;
- the employee has been imprisoned; and
- the business changes location, the employee is unwilling to relocate and there is no ‘relocation clause’ in their contract.
Automatically Unfair Dismissal Reasons
Dismissal of an employee because of their sex, sexuality, religion, age, race or gender reassignment (whether real or imagined by the employer or other employees) is automatically unfair in law. In some rare cases it is possible to argue that the position has a genuine occupational requirement that the employee would not be able to fulfil, but this is not possible in the vast majority of cases.
The various statutes in employment law state that the following cases are also likely to be automatically unfair, so care should be taken where an employee’s dismissal procedure falls into these categories:
- Undertaking certain trade union activities;
- Exercising, or wishing to exercise, a statutory right or duty, such as parental leave or jury duty;
- Exercising health and safety regulations, or requesting they be exercised;
- pregnancy; and
- being, or being suspected of being, a whistleblower.
Where a case of automatic unfair dismissal arises, protection is not limited to employees with a year or more on their service record. Protection begins from the interview process onward, and employers are required to treat potentially troublesome situations with care if they wish to avoid liability.
Unfair dismissal is an umbrella term for a variety of protections that seek to address the growing problem of discrimination and malpractice in the workplace. It covers a vast array of situations and while it can seem complex at first, it is merely a remedy to the problem of poor employer-employee relations that is easily avoided by care, due diligence and treating everyone fairly.
In 2006, Random House Group, publishers of Dan Brown’s incredibly successful novel The Da Vinci Code, found themselves at the centre of a major lawsuit for alleged copyright infringement. Two of the authors of The Holy Blood and The Holy Grail (the third author declined to take part in the suit) brought a case against the Da Vinci Code publisher over the similarity between their own work and six chapters of the 2003 novel.
At trial, the judge found in favour of Random House and denied the HBHG authors leave to appeal. However, the authors were able to convince the Court of Appeal to hear the case on the grounds that the trial judge (who famously inserted a ‘code’ of his own into his judgment) has misdirected himself on the law he was to apply in the case. Consequently, Baigent and another v. Random House Group Ltd [2007] EWCA Civ 247 was heard in the Court of Appeal the following year.
What Constitutes Copyright Infringement?
For a copyright infringement case to be made out, two important factors must be proved. Firstly, the claimants must show that not only does the defendant’s work contain material that is also in the claimant’s earlier work but that the defendant had access to this earlier work while, or before, they created their own work.
In the case of The Da Vinci Code, it is clear that Dan Brown had indeed had access to The Holy Blood and The Holy Grail; and even went so far as to include the names of two of the book’s authors as the name of a principle character in the book.
The second factor that must be proved was more difficult in the Da Vinci Code Case, however. In order for copyright infringement to occur, the material appearing in the later work must form a “substantial part” of the earlier work. To understand what will be regarded as a “substantial part” of the work, we must look at an earlier case.
The Definition of a Substantial Part of a Work
In Designers’ Guild Ltd v. Russell Williams (Textiles) Ltd [2001], the House of Lords considered the question of what constitutes a “substantial part” of a copyrighted work. Here Lord Hoffmann ruled that a “substantial part” can be a wide-ranging concept, stating: “can be a feature or combination of features of the work, abstracted from it rather than forming a discrete part”.
From this it can be seen that the overarching plot of a novel is unlikely to be a “substantial part” of a work, but original elements in it may be. Taking a well-known example, the concept of a band of rebels fighting against an evil empire will likely not be a substantial part of a copyrighted work; but the concept of the Jedi as warrior monks with amazing powers would.
To quote Lord Hoffmann again: “it is an idea expressed in the copyright work” that defines what is, and is not, a “substantial part”. The key word here is not the idea but its expression. Star Wars has a similar plot to many other works throughout history, but how it expresses that plot is what makes its copyright enforceable.
The Verdict
The Court of Appeal examined the case in detail before ruling that the claimants had failed to prove their case on the second factor. Because they were unable to prove that the six chapters of Brown’s novel contained anything that could be classed as a “substantial part” of their own work, there was in fact no case of copyright infringement to answer.
The Da Vinci Code case is one of many plagiarism and copyright infringement cases in English law but it holds a significant place in the law because it brings together all the factors required to prove such a case in one location. Following this ruling it can be said that English law requires more than for a work to have a similar theme, or even be inspired by, an earlier work and that copyright infringement requires a substantial part of the original work to be reproduced, in terms of how the work is composed and the expressions of its themes.
In short: it is not enough to use the same ideas; it is their expression that counts.
