Overview of Employment Law and of Contract of Employment
In the United Kingdom, the laws governing Employment Terms and Conditions consist of a close interrelation of activities of three groups: the Employers, the Employees and the Trade Unions. The basic objectives pertaining to Statutory Employment Laws apply to all employees equally. The HR Policies relevant to a specific business are clearly set out in the form of an Employee Handbook which needs to be followed. UK ensures that the employees within its geographical borders are protected by clear regulations that guarantee them job security. These laws include The National Minimum Wage Act 1998, The Employment Rights Act 1996, The Working Time Regulations 1998, and The Pensions Act 2008 (Griffith and Macartney 2014). All these laws strive to provide the employees with fair occupational standards and fundamental sanctuary for survival. In UK, when an individual enters into employment with any organisation, he or she is bound by certain contracts which are mutually benefitting to both the employee and the enterprise. The components of such contracts include the employee’s personal details; work details like place, designation, working hours, salary and leaves. It also comprise of the probation period, notice period and the disciplinary and grievance policies integrated within the organisational framework. The following report outlines the specific HR and Legal policies that guided the administration and employment relations in Carling UK Ltd. It also analyses the quality of competence and discourse of the superior governing body when the organisation was met with critical employment issues (Dessaint, Golubov and Volpin 2017).
The Urgency of Legal Concerns at Newcastle Care Home
Annabel Handy, Director of Carling UK Ltd. was facing challenges related to employee indiscretion at Middle and Junior Levels in the Newcastle branch of the organisation. In-discrepancies within the organisational culture could be attributed as one of the reasons behind it (Davidov, Freedland and Countouris 2013). The Newcastle branch was in dire need of a competent Human Resource Officer who would be able to resolve disputes arising between the Administrative Team Member and their Manager. Randeep Bains was hired to manage the HR concerns. Annabel solely rested her decision to hire Randeep on personal acquaintance and her handsome years of past experience. However, the Director did not take into account the fact that Randeep was resuming work after a long break, hence she might be partially unaware of the new laws and regulations pertaining to changed working conditions.
There are significant implications of the amendments in Employment Laws. Employees, being a major part of the ‘shared economy’ are more cognizant about their rights. They do not recede in demanding explanation in light of injustice meted out to them, posing challenges to both their employers and the Government at large. The case of Colin Tate expatiate the given agenda. He was convicted of breaching workplace ethics by expressing negative opinion about Carling Ltd. on Social Media. As a result, he had to appear before a Disciplinary Proceeding which ultimately led to his dismissal from duties. As discussed by (Countouris 2016), even though the charges against Colin were in compliance with Acas Code of Practice under UK Law, the new HR manager, Randeep Bains, did not keep any MOM throughout Colin’s Disciplinary Hearing. This was a major loophole questioning the case’s authenticity a well as competence of the HR Manager. In his defence Colin had argued that there was no stated policy of the organisation that barred its employees from expressing their views freely. However, his comments had hurt the reputation of the organisation and this was exactly the reason he was held accountable for that justified his dismissal.
Another grave miscarriage of justice was in the form of favouritism. Alan Macgregor, Manager of Carling’s Newcastle Branch had proved his inefficiency on many occasions. Annabel was reluctant to preside over Colin’s case unbiasedly as that could go against Colin’s interest. Alan was hired as a favour to one of Annabel’s close acquaintance and she was not ready to disrupt her personal relationships. In this regard, she, as a Director failed to uphold the organisation’s ethos and acknowledge Colin’s past contributions to the company. She was unable to pass a diplomatic decision and meted an unfair treatment to her employee. This formed the very crux of the matter on which Colin had commented, by saying, that Carling Care House was not discharging its responsibility properly to the elderly people in their care. Lack of appropriate communication and transparency between the leadership and the employees is bound to drive the later astray deteriorating their job satisfaction (Reuter, Wijkstrom and Uggla 2013).
Critical Evaluation of the Employer-Employee Disputes in Carling Ltd. UK
As opined by (Forth et al. 2013), the dismissal of any employee should be justified in accordance with Section 1 of Employment Rights Act 1996. As per this Act, an employee has to be provided with the written particulars of the organisation’s terms and conditions within two months of his commencement of service. The statements are compiled as a contract whose breach under any circumstance can hold the employee accountable and he or she would be liable to appear for a disciplinary hearing. In those hearings, the employee’s perspectives and grievance, if any, are also taken into account. If the employee is found guilty through collective agreement, he or she would face termination. The ultimate decisions are always taken based on terms and conditions of the Act relevant to the clause of disciplinary proceeding applicable in case of the particular employee. If there is any change, the employee should ideally be notified about the same within four weeks of the amendment. In case, the employer fails to inform the employee with written particulars, he is liable to compensate him with four weeks of pay. Under any circumstance, if the terminated employee produces a claim of unfair dismissal before the Employment Tribunal, it would be verified for authenticity. If found legitimate, the employer would be obligated to award the dismissed employee with an additional compensation over and above the existing four weeks of compensatory pay.
Carling UK Ltd. had raised disciplinary concerns against both Colin Tate and Julie Tate based on reasonable justifications. However, the absence of relevant terms and conditions in the Contract of Employment, supporting their misdoings, lent both their cases with some amount of ambiguity. In such case, their dismissal could be treated as unfair and Carling would be accountable to pay them with Compensatory Awards (Simintzi, Vig and Volpin 2014). However, under special circumstance of Gross Misconduct, as in the case of Colin who had opined with negative nuances about the Organisation in an open public forum that led to catastrophic back-lash from the resident’s relatives, Carling has the ultimate authority to dismiss him without notice. In case of Julie Tate, the fact that she was asked to remove her necklace, for hygiene concerns, or face dismissal, leave scope for dubiety (Carr 2014). The case becomes riskier since it accounts for religious discrimination, as Julie’s necklace carried a Cross which she, being a catholic, was unwilling to part with. If Julie posed any charge of discrimination against her, then Carling would be liable to pay her with an expensive Tribunal Claim. However, it must be noted that there are various Implied Terms along with the written ones that may or may not be included within the Employment Contract. As per these implied terms, the employer or organisation can demand due diligence and obedience from its workers, failing which can lead to termination of service.
Annabel Handy was aware of the inconclusiveness of Ali Khan’s case. Ali had tried to avert a health risk concerning the electrics within the care home, abiding by the right procedures. It was thoroughly an act of incompetence on part of Alan Macgregor who was not able to manage the operational budget effectively which in turn tied hands of the senior manager, James Magpie. Ali, in a fit of resentment towards James’s and Alan’s indifference towards such imposing Health Risk had escalated the issue to the Health and Safety Executive which was against the Organisation’s interest. This very action had triggered the HR’s suspicion against him. Therefore, even though Ali was in the right track from the beginning, he was culpable for breaching confidentiality of the organisation and was held accountable under the Statutory Dismissal and Disciplinary Procedures of the Employment Act 2002, which led to his termination (Wild and Kydd 2016).
The various parameters on which an organisation’s culture is assessed, Equality of Opportunity is regarded in paramount importance. For this purpose, the Equality Act of 2010 came into being as a follow up to previous Laws of Race Relations Act 1976 and Disability Discrimination Act 1995 (Grimshaw, Rubery and Ugarte 2015). The purpose of this Act was to advocate fair opportunities for all employers and employees within an organisation. A workplace is characterised by its diversity in gender, age, social status, ethnic origin, religion, caste, sexual orientation, nationality and economic class to name a few. Under such circumstance it become imperative for the organisation to implicate regulations that can coherently ensure its smooth functioning keep its dignity intact. It is also upon the members of the organisation to conform to such legislations and support the undertaken legal policies. A special policy regulation applies to discrimination against disability which employers adhere to at the time of recruitment. ‘Reasonable Adjustments’ are made if the applicant fits the job profile despite his or her disability (Nichols and Walters 2016). Equal pay irrespective of gender, pregnancy, religion and ethnicity are also among the most volatile areas which an organisation needs to handle with utmost care in order to promote a civic environment within the organisation (Yeoh 2014).
The Director of Carling UK Ltd. had crucial obligation with respect to the above aspect. She was at a fix for favouring Alan Macgregor and Randeep Bains in-spite of their proven incompetency. She did not want to dismiss her senior employees because that could adversely affect her personal relationships. However, Annabel needs to understand that her decision to dismiss junior employees like Ali Khan, Julie Tate and Colin Tate deviate from the very essence of Equality in Carling and had the potential to lead her towards charges of Unlawful Victimisation (Handley et al. 2014). It is a serious consequence faced by an employer in those occasions where he or she has indulged in discrimination or has ignored an employee’s claim, with strong evidence, of unjust discrimination. The director is equally responsible towards her 500 employees as well as the residents of her care home. She was unwilling to jeopardize the image of Carling on the basis of a single employee’s negative remarks. It could lead the relatives of the residents in the care house to lose trust in its operation. Even though Annabel was faced with such jeopardy, she complied with the HR policies to give Colin Tate an opportunity to clear his name in the hearing. But evidence against him was too critical to let go, which is why he was dismissed.
The ACAS Business Solution advocating Equality and Diversity is strongly recommended by the UK Government under the Equality Act of 2010 (Manthorpe, Samsi and Rapaport 2013). This forum permits the employees to ask questions and express equality related grievances before their employers. It also encourages the employers to conduct workshops to educate their employees on their rights pertaining to Equality (Linos 2013).
A company is regulated by the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE) in occasions of acquisition of its business by any other company (Vindigni, Scotti and Tealdi 2014). The key features of this legislation was revised in 2006 which propound certain conditions in relation to the nature of the existing business, such as security, cleaning and distribution, catering or maintenance, and that to which it is being sold. It also takes into account whether the full business or parts of its assets or shares are being sold. There are separate laws pertaining to the tangible and intangible assets. Provisions of contractual and outsourced businesses also come under its purview. UK Government provides protection to employees under Council Directive 77/187 when the organisation, they are a part of, is sold or transferred to another designated enterprise (Feito- Ruiz, Fernández and Menéndez-Requejo 2014). The protection is based on the nature of workforce transfer, the size of the workforce and the extent to which their job description and KRAs carry similarity with the previous company. Sometimes the new business automatically inducts the entire workforce. In few cases when they do not, the business suspends the workforce, with a legitimate compensation, till a matching requirement comes up. The employees, under such occasions need to have knowledge about their Rights, which the State provides them, and verify all terms and conditions related to job security during the period of suspension (Robbins et al.2013). These terms and conditions should be in compliance with payable wages, compensation for industrial accidents, pension schemes, retirement benefits and other benefits payable in line with the years of occupational service. However, while assimilating a business, the new company takes into consideration the employment records like criminal liabilities and objectionable behaviour of the old employees and take decision based on that. As highlighted by (Agrawal et al. 2013), Economic Technical or Organizational Reason or an ETO Reason accounts for a special situation whereby an employee of the acquired business may be dismissed for unproductivity, failing to meet the required standard or prolonged redundancy. But, unfair dismissal of an employee on grounds of trade union intervention or non-compliance of TUPE would automatically qualify for hearing before Employment Tribunal. There is yet another instance where an employee might object to his or her transfer by formally intimating the transferor or the transferee. In such a situation, the employee raising objection will not be entitled to any severance pay.
Annabel Handy, the Director of Carling UK Ltd. while considering her early retirement by selling off the organisation to her friend should assess the legal options pertaining to TUPE. It would be advisable not to engage in void controversies and be cautious with regards to TUPE regulations for appropriate transfer of her business (Andriosopoulos and Yang 2015).
Conclusion
To conclude the report on the above case analysis it can be said that Employment Laws in UK have a two way function in benefitting both the employer and the employees. Just like employees cannot be wrongfully terminated without justifying and specifying the reasons, in lieu of the Statutory Dismissal and Disciplinary Procedure under the Contract of Employment, they are also not entitled to unlawful favours from the organisation.
The Conditions of Employment in Carling UK Ltd. can be recovered with the help of few improvement on the existing structure. The first recommendation suggested would be defending an employee from unfair reasons of dismissal and providing equal opportunities to all employees irrespective of their diversity at workplace. The second recommendation suggested would be not practicing favouritism within the Management circle and holding the junior employees accountable. Lastly, the final recommendation would be abiding by the legal procedures strictly under circumstances related to merger and acquisition.
References
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Andriosopoulos, D. and Yang, S., 2015. The impact of institutional investors on mergers and acquisitions in the United Kingdom. Journal of Banking & Finance, 50, pp.547-561.
Carr, S., 2014. Pay, conditions and care quality in residential, nursing and domiciliary services. Joseph Rowntree Foundation York.
Countouris, N., 2016. The changing law of the employment relationship: comparative analyses in the European context. Routledge.
Davidov, G., Freedland, M. and Countouris, N., 2013. The Subjects of Labor Law:’Employees’ and Other Workers.
Dessaint, O., Golubov, A. and Volpin, P., 2017. Employment protection and takeovers. Journal of Financial Economics, 125(2), pp.369-388.
Feito-Ruiz, I., Fernández, A.I. and Menéndez-Requejo, S., 2014. Determinants of the acquisition of listed versus unlisted firms in different legal and institutional environments. Applied Economics, 46(23), pp.2814-2832.
Forth, J., Kersley, B.E., Lardies, C.A., Bryson, A., Bewley, H., Dix, G. and Oxenbridge, S., 2013. Inside the workplace: findings from the 2004 Workplace Employment Relations Survey. Routledge.
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Grimshaw, D., Rubery, J. and Ugarte, S.M., 2015. Does better quality contracting improve pay and HR practices? Evidence from for-profit and voluntary sector providers of adult care services in England. Journal of Industrial Relations, 57(4), pp.502-525.
Handley, M., Goodman, C., Froggatt, K., Mathie, E., Gage, H., Manthorpe, J., Barclay, S., Crang, C. and Iliffe, S., 2014. Living and dying: responsibility for end?of?life care in care homes without on?site nursing provision?a prospective study. Health & social care in the community, 22(1), pp.22-29.
Linos, K., 2013. The democratic foundations of policy diffusion: How health, family, and employment laws spread across countries. Oxford University Press.
Manthorpe, J., Samsi, K. and Rapaport, J., 2013. “Capacity Is Key”: Investigating New Legal Provisions in England and Wales for Adult Safeguarding. Journal of elder abuse & neglect, 25(4), pp.355-373.
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