In the United Kingdom (UK), there are different sources of the employment law and this includes the common law, the European Union law and the different statutory laws. The employment contract is a document which oversees the relationship, between the employer-employee and details the terms and conditions of the employment (Tim-Russell, 2017). It clearly sets out the rights, duties and obligations of both employer and employee, while in employment (Moffat, 2011). Employment Act 2002, Sex Discrimination Act 1975, National Minimum Wage Act 1998, and Race Relations Act 1976 are just two examples of statutory laws which are applicable on this employment relationship (Cabrelli, 2016). The laws of EU have a major role in the UK’s employment law (Kemp Little, 2014).
1. The meaning of each of the claims made against Des and Sarah has been elucidated here.
In this case, Diane has made a disability discrimination and unfair dismissal against Des and Sarah. In UK, the Equality Act, 2010 is a statutory law, through which the prohibition and restrictions have been imposed over the discrimination arising from disability (UK Government, 2013). In case of removal of an employee from a particular job, for the reasons of the disability of the employee, it is deemed as unlawful pursuant to the provisions of the Equality Act, 2010 (Citizens Advice, 2017). A key example of this was seen in Richman v Knowsley Metropolitan Borough Council ET/2412125/2011, where the disabled support worker was awarded £101,183 as the disciplinary process was mishandled due to the bipolar council worker. Similarly, in O’Doherty v Royal Bank of Scotland ET/2407660/2010, owing to the depression of the employee, the Royal Bank of Scotland was required to pay £126,348 by the Employment Tribunal to the depressed employee (Simpson, 2014; Xpert HR, 2014).
In this case, Graham had made an unfair dismissal claim due to the unreasonableness of the employer. When the dismissal of the employee is due to unjustifiable reasons, the dismissal is deemed as being unfair (UK Government, 2017). Under Employment Rights Act, 1996, section 94, the employee has been given the right to not be dismissed in a manner which seems unfair (UK Legislation, 2017a).
In the given case study, Kelly had made a constructive dismissal claim, a sex discrimination claim, and the contravention of Public Interest Disclosure Act. Section 95(1)c of the Employment Rights Act, 1996 provides that in such a case where the company employee is forced to leave their job, even when they do not wish to do so, resulting from the conduct of the employer, it is constructive dismissal (UK Legislation, 2017b). Under the Equality Act, a restriction is placed on discrimination taking place on reasons of sex or gender, and it does not matter if it is direct or indirect discrimination as both are deemed as unlawful; and this includes any kind of victimization, and harassment (ACAS, 2016). The Public Interest Disclosure Act, 1998 requires protections to be offered when the disclosures are made through information or evidence by the employee and after such disclosures have been made, the employer cannot terminate the employee. These provisions are related to the whistleblowing mechanism (Savage, 2016).
Unfair dismissal and the breach of working time regulations are two of the claims which have been made by Ralph in this case. For the employee dismissal, it is significant that the proper reason for dismissal, a notice period or pay in lieu of notice period is given to the employee. It is crucial to give the employee an opportunity to be heard before being dismissed. The Working Time Regulations, 1998 gives the right to the employees to be permitted to take rest for a minimum duration of 24 hours in every week. In case a week off is not granted, the provision of this act are breached and penalties are imposed (CIPD, 2011). In the case of Miles v Linkage Community Trust Limited UKEAT/0618/07, the Employment Appellate Tribunal was held to be right when it was held that even when the regulations were breached, there was not a need for a compensation award to be made (PLC Employment, 2017).
2. As the meaning of the claims has been clarified, the strengths of each of these cases, along with the available defenses have been summarized here.
For the unfairness of disability discrimination, it is obligatory to establish the unfairness. In the case of Harris v Monmouthshire County Council ET/1603912/2013, an award of £238,216 was given to the senior education welfare officer for the disability discrimination and unfair dismissal (Simpson, 2014; Xpert HR, 2014). Section 20 of the Equality Act provides that the reasonable adjustments have to be made so that the employee can overcome the disability. Collins v Royal National Theatre Board Limited [2004] 2 All ER 851, [2004] EWCA Civ 144, it was held that the employee had failed in making the reasonable adjustment, as was required under the erstwhile act of Disability Discrimination Act 1995 (Swarb, 2017; British and Irish Legal Information Institute, 2017).
In order to defend the dismissal of an employee on the basis of disability, it is to be shown by the employer that the reasonable adjustments were made or that the same were not possible based on the present situation. In the case of Horler v Chief Constable of South Wales Police ET/1600591/2012, the South Wales Police was ordered to pay up £230,215 owing to the undertaken disability discrimination towards a police officer, as in this case, the police force had failed to make the required reasonable adjustment for the injured officer (Simpson, 2014; Xpert HR, 2014).
Where the employer has made reasonable period of time available to the employee, so that the employee can recover, the dismissal of employee was considered as fair. Where the chances of recovery of employee are negligible, the fairness of dismissal cannot be contested. So, the case of Diane does not hold any significant strength. Lastly, by showing that the compensation had been given to her, before she was dismissed, the claims of Des and Sarah can be strengthened.
When an employee’s conduct is such that it can be deemed as gross misconduct, the employee can be suspended and afterwards, the investigation has to be undertaken. Some of the factors which contributed to gross misconduct are confidentiality breach, theft and dishonesty (Landau Law, 2017). The dismissal of an employee can take place only after a disciplinary proceeding has been held and there, the charges laid against the employee have been established. Where this is done, a notice period is not needed, along with a pay in lieu of notice. When the employee admits that the gross misconduct was carried on, the investigation is still needed and the mitigating factors have to be considered (Citizens Advice, 2013). In the case of Williams v Leeds United Football Club [2015] EWHC 376, the claim for wrongful termination was upheld, due to the claimant being dismissed without the notice period and hence, was awarded damages (Employment Case Update, 2015).
In this case study, gross misconduct was undertaken by Graham and so, Des dismissed Graham. He was initially suspended and had been given an opportunity to present his justification. The guilt of Graham was clearly established and the same was admitted. This would lead to the failure of Graham in his claims.
The evidence related to prejudicial treatment owing to sexual discrimination is not present in the case study. The same is the case for the contravention of provisions of the Public Interest Disclosure Act. This is because Des never disclosed that the information was given by Kelly. Further, it could not be established by Kelly that Graham was the one who has actually vandalized her car; there was no evidence to prove this.
For establishing a constructive dismissal case, it is crucial that the employer conduct was unreasonable for the dismissal of the employee. Till such time period, where the insurance policy clause specifically shows that employer is liable, or where the employment contract contains such clause, the employer cannot be made liable. The case of Wright v North Ayrshire Council UKEATS/0017/13/BI the Employment Appellate Tribunal held that only a single breach of contract can be used to justify the claims made, even when the same was not the key reason for the resignation of the employee. And so, the appeal of Wright was upheld (Javaid, 2013). Since, there was nothing to show this, Kelly’s claims would fail.
Generally, the employment contracts contain the “opt out” clauses whereby they can opt of the rules and regulation drawn up; for instance, the ones related to maximum working hours. The validity of such clauses are upheld when the “opt out” clause is signed and when such happens, the Working Time Regulations provisions are not deemed to be breached. Though, the employee has to provide a free consent to such clauses. Wippel v Peek & Cloppenburg Case C-313/02 was a case where the court upheld the validity of the no fixed hours’ condition, even when the same was a contravention of the Working Time Regulations. This was due to the plaintiff opting out of these regulations (British and Irish Legal Information Institute, 2004). The employer can also terminate the employee, when there is a refusal on part of the employee to work. And so, Ralph’s claim cannot be upheld as he had signed the “opt out” clause.
3. For addressing the conflicts, Des and Sarah can undertake the following steps, stated here.
When an unfair dismissal claim is made on disability discrimination basis, there is a need to give the individual justified alternatives, to show reasonable adjustment has been undertaken by the employer. The same has to be communicated properly so as to avoid an unfair dismissal case. There is also a need for the employer to show that the employee had been dismissed properly.
The matters regarding gross negligence require the employee to be given an opportunity of being heard (Linklaters, 2013). The ACAS Code in such matters is of assistance, as the disciplinary process which is deemed as reasonable and fair is explained in this code and this should be opted for in gross misconduct cases. A sole incident cannot be stated as being a gross misconduct case, and this was held in Laws Stores Ltd v Oliphant [1978] IRLR 251 by the Employment Appellate Tribunal (Mothersole and Ridley, 1999). In the case of Weston Recovery Services v Fisher UKEAT/0062/10, the summary dismissal of the employee was held to be correct as the employee had failed in checking the safe condition of the company’s vehicle. Though, as this conduct was not deemed as gross misconduct, the damages were awarded to the employee (Cartwright King Solicitors, 2017).
So, there is a need to make certain that the misconduct which has been claimed by the employer is not a single isolated event. And it is deemed as a best practice to give the opportunity of being heard to the employee.
ACAS has issued guidelines which includes the ones on sex discrimination. For making a claim of sex discrimination, it is deemed as best practice to adopt these guidelines (Johnson, 2017). There is a need to follow the Public Interest Disclosure Act provisions properly. There is a need for the companies to safeguard its whistleblowers by not terminating them when a particular issue is brought to the notice of the company. There is a need for Des and Sarah to ensure that the constructive dismissal is not indulged in so that the good practice can be adopted, since the constructive dismissal creates the negative image for the company.
Working Time Regulations have to be properly followed by Des and Sarah. When they get their employees to sign the “opt out” clauses, there is a need for such clause to have lawfulness and validity. This needs to be brought to the attention of the employee before the employment agreement is signed, so that they are aware of the things which they are entering in. ethically, such opt out clauses need to be inserted in different contract, which is different from the employment contract, so that the employee can freely deicide if they want to be a part of such clause or not. And as a best practice, an opportunity of being heard is crucial for the employees.
The ACAS (Advisory, Conciliation and Arbitration Service) and CIPD (Chartered Institute of Personnel and Development) are two organizations which have given certain guidance, the adoption of which ensures the adoption of best practices.
ACAS
ACAS has brought forward a Code of Practice on Disciplinary and Grievance Procedures which helps the employers in addressing the issues revolving around gross misconduct. As per this code, there is a need of adoption of fair procedure before the employer takes any action against the employee. There is also a need for conducting a meeting with the employee and a right of appeal to be given to the employee. The reasons for dismissing the employee and the communication of these are also crucial. Before permanently dismissing the employee, the employee has to be suspended and this has to be kept for a review. The dismissal has to be proportionate and reasonable. Only when dishonesty, alcohol abuse or insubordination is involved, is immediate dismissal acceptable (Landau Law, 2017). For establishing good practices, the duties and rights need to be adhered and there is also a need to give support to the staff so that they are motivated and productive.
There are major publications of the ACAS on the sex discrimination policy along with the guidance of the ACAS on recruitment and induction, management of disputes, health, work and well-being, conflict redundancy and discipline and grievance, amongst the other (ACAS, 2015). The Human Resource Department of the company is required to incorporate these, for avoiding the conflicting situations at workplace.
CIPD
The CIPD follows two major models, i.e., the contingency and the high commitment model. The commitment model, the approach of single style is considered as insufficient for the long run and hence, such approach has to be adopted where the issue has to be addressed on the basis of particular situation which is present (Tamkin, 2004). Under this model, it is considered that the distinctive combinations can be used to address the specific conditions in an effective manner. Through this, a teaching is taken from the situation which is present and these are also used as future lessons.
In the high commitment model, the employees have to be managed on the basis of self regulation and on the basis of trust. So, unlike the contingency model, the stress is on the qualities and not on the situation present, which is guided by the external pressure. Due to this practice, the performance of the company can be easily improved, which translates into the performance of the employees being improved. This further translates in the rate of absenteeism being brought down, along with the labor turnover, which is also reduced. This model motivates the works, increased job satisfaction, trust and commitment. Hence, the litigations, related to such matter, can be reduced in the future for Des and Sarah.
Conclusion
In the preceding parts, it was highlighted that there are different employment related laws in the nation and in these legislations give the rights and responsibilities to both the employers and the employees. Under the provisions of the law, the employers and employees are protected from any unjust treatment. Also, the guidance which have been issued by the CIPD and the ACAS offer the best practices to the employers, the adoption of which can held them in avoiding the claims of unfair dismissal or the others, which were highlighted in the discussion which was carried above.
From the claims which have been raised against Des and Sarah, some recommendations can be drawn for them. The most important one is the adoption of the code which has been drawn by the ACAS, in particularly for the discipline and grievances issues, as this would help them in avoiding the claims which have been highlighted in the case study. Further, it is also recommended to Des and Sarah to adopt to adopt the contingency model, where on the basis of the particular situation, the issues are dealt with, as this would help in effectively addressing the issues which they face.
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