The common law in UK had three major sources for the employment law and these include the statutory laws, the laws of the European Union and the common law. The employment contract regulates the relationship between an employer and an employee, where all the details of the employment are provided and this is regulated through the common law (Tim-Russell, 2017). The employment contract is lawful document through which the duties and the rights of the employee and the employer, in an employment, are covered (Moffat, 2011). The statutory laws are regulate the employment legislation and covers different statutes like Race Relations Act 1976, Employment Tribunals Act 1996, Employment Act 2002, and the like (Cabrelli, 2016). The EU laws also play a crucial role in the employment laws of UK (Kemp Little, 2014).
In the given case study, different claims have been made against Des and Sarah. The meanings of each of these claims have been explained below.
Diane made a claim for disability discrimination and unfair dismissal. The Equality Act 2010 is the act in UK, through which the discrimination on the basis of disability is, prohibited (UK Government, 2013). When an employee of the company is removed from the job, owing to their disability, it is covered under disability discrimination and this is unlawful under the Equality Act (Citizens Advice, 2017). In the matter of Leeds Teaching Hospital NHS Trust v Foster UKEAT/0552/10/JOJ, the claims of the plaintiff was upheld by the Employment Appeal Tribunal and it was held that there has been an unfair dismissal owing to disability of the employee (Employment Case Update, 2017). This led to the employee being awarded £53,950.62 as compensation (Thompsons Solicitors, 2012).
Graham made a claim of unfair dismissal on the basis of employer’s unreasonableness. In case of an employee dismissal, owing to the reasons which are not reasonable or justified, the dismissal is known as unfair owing to the same being unreasonable (UK Government, 2017). As per section 94 of the Employment Rights Act, 1996, the employee has the right to not be dismissed in an unfair manner (UK Legislation, 2017a).
Kelly had made a claim for constructive dismissal, sex discrimination and breach of the Public Interest Disclosure Act. The Employment Rights Act, 1996 through its section 95(1)c provides that when an employee of the company is compelled to leave the job, against their wishes, owing to the employer’s conduct, it is known as constructive dismissal (UK Legislation, 2017b). The Equality Act also imposes a restriction on discrimination on the basis of gender or sex of a person, irrespective of the fact that it is direct, indirect discrimination, harassment or any other sort of victimization (ACAS, 2016). The employees making disclosure are protected through the Public Interest Disclosure Act, 1998 for making such disclosure where an evidence or information is committed and this protection is in matters of employee being sacked. So, in case a whistleblower is dismissed, it would be deemed as a breach of the provisions of this act (Savage, 2016).
Ralph made two claims, which were of unfair dismissal and breach of the working time regulations. In order for an employee to be dismissed, it is crucial that the employee is given proper reason and a notice period or payment in lieu of notice. The employees also have the right to be heard in such matters, before they are dismissed from employment and an example of this is the case of Malloch v Aberdeen Corp (No 1) [1971] 1 WLR 1578 (Swarb, 2015). Under the Working Time Regulations, 1998 the employees have the right to be allowed a minimum time of twenty four hours as a rest period for each week by their employer. In case the employee is not given a day in week off, the provisions of this act are deemed to be contravened (CIPD, 2011).
After the explanation of each of these claims, the next step is to evaluate their strengths and defenses.
In order for the disability discrimination to be held as unfair, it has to be shown that there were reasons to show the unfairness. The dismissal on the basis of disability cannot be deemed as unfair by default, as was held in the matter of HJ Heinz Co Ltd v Kenrick [2000] IRLR 144 (Stammering Law, 2017). Under section 20 of the Equality Act, 2010, the employer is also required to undertake the reasonable adjustments in order to help the individual in overcoming their disability. In Archibald v Fife Council [2004] UKHL 32, the court was of the view that the employers had the duty to make such reasonable adjustment. A possible defense in such cases is the ability of the employer to show to the satisfaction of the court that making the adjustment was not possible or that the same were not possible in the given circumstances. And the reasonable adjustment is based on the objective assessment, as was held in O’Hanlon v Commission for HM Customs [2006] IRLR 840 (Disability Discrimination, 2008).
In case the employer has provided the employee with reasonable amount of time, for their recovery, the employee dismissal had to be construed as fair. Also, in cases where the recovery chances are next to none, the dismissal would have to be deemed as fair. Hence, the claims of Diane do not have much strength. Moreover, Des and Sarah can also show that Diane had been properly compensated before being dismissed.
Gross misconduct allows the employer to suspend the employee pending investigation. Dishonesty, theft, and breach of confidentiality are some of the examples of gross misconduct (Landau Law, 2017). The employee can be dismissed by the employer only after the disciplinary proceedings have been completed. In such cases, a notice period is not required, and nor is the pay in lieu of notice. Even if the employee agrees to being indulged in the gross misconduct, an investigation is needed for considering this acceptance and also to take into account, the mitigating factors (Citizens Advice, 2013). In the matter of Stuart v London City Airport [2013] EWCA Civ 973, it was held that the investigation of the employer was fair and reasonable, and so, the court gave its decision in the employer’s favor (British and Irish Legal Information Institute, 2013).
In the given case study, Graham undertook gross misconduct, as a result of which, Des dismissed him. Before dismissing him, Graham was only suspended and was also given a chance to provide his justification. There was clear evidence to show that Graham had been guilty and even he admitted the same. Hence, the claim of Graham would fail
There is an absence of evidence or basis for sexual discrimination in this case. This is also true for the alleged breach of Public Interest Disclosure Act. The reason for this is that the information was never disclosed by Des and neither was the originator of this information disclosed. In short, Des never told anyone that Kelly was the one who told him about Graham’s misconduct. There is nothing to prove that the car of Kelly had indeed been vandalized by Graham.
In order for the claim of constructive dismissal to be established, it has to be established that the conduct of the employer was reasonable for the job of the employee being dismissed. Till the time the insurance clause is contained specifically that the employment contract, the liability for the insurance claim cannot be imposed on the employer. In Tullett Prebon PLC v BGC Brokers [2011] IRLR 420, it was stated by the judges that there was a need to prove the subjective intention on part of the employer, for a claim of constructive dismissal to be upheld (British and Irish Legal Information Institute, 2011). As this was not present, the claims of Kelly would not be upheld.
Often, the “opt out” clauses are added in the employment agreements, with regards to the maximum working hours, amongst the other things. When such an employment, containing “opt out” “opt out” clause is signed, the clause had validity and in such cases, the provisions of Working Time Regulations are not contravened. However, for such clauses to be valid, the employer has to give free consent to the same. In Wippel v Peek & Cloppenburg Case C-313/02, the condition relating to the no fixed hours, was held to be valid by the court, even when the same was a breach of the regulations. But this was upheld as Nicole Wippel had specifically opted out of the same (British and Irish Legal Information Institute, 2004). The employer also has the right to dismiss the employee, when they refuse to work. On the basis of these factors, the claims of Ralph would not hold, due to him signing the “opt out” clause which was contained in the employment contract.
In order to deal with the conflicts, certain steps can be taken by both Des and Sarah, which have been summarized below.
It has to be made sure that for the claims made for unfair dismissal, on the basis of disability discrimination, the person is given proper substitutes in order to depict reasonable adjustment has been made. It is also required that the reason for dismissal has been properly communicated so that an unfair dismissal is not cited. The employee should always be given a chance to present their explanation before they are dismissed, for showing that the employee had been properly dismissed.
In the matters related to gross negligence, it has to be made certain by the employer that the employee is given a chance to explain their side of the story (Linklaters, 2013). In this regard, ACAS Code proves to be of help as it explains the just and reasonable disciplinary process, which has to be undertaken in cases related to gross misconduct. A single incident cannot be deemed as a misconduct case, as had been held by the Employment Appellate Tribunal in the case of Laws Stores Ltd v Oliphant [1978] IRLR 251 (Mothersole and Ridley, 1999). Hence, it has to be ensured by the employer that the misconduct being claimed against is not a one off incident. Further, as a good practice, it is preferable to give the employee, a chance to be heard.
Certain guidelines have been issued by the ACAS, including the policy on sex discrimination. In order to make certain that the sexual discrimination case is not made, it is preferred that these guidelines are properly adopted (Johnson, 2017). It is also required on part of the companies that the provisions of the Public Interest Disclosure Act are properly adhered with. And so, the companies are required to protect the whistleblowers by not dismissing them for disclosing a particular issue or blowing whistle on a particular matter. Des and Sarah also need to make certain that they do not indulge in constructive dismissal to show good practice, as a negative image of the company is created through constructive dismissal.
It is crucial on part of both Des and Sarah to make certain that the Working Time Regulations are properly adhered with. The “opt out” clauses do have legality and validity, but they are not deemed as ethical. It is also a duty of the employer to highlight such “opt out” clauses to the employee before they sign the employment agreement, so that they can know what they are getting into. As an ethical practice, the “opt out” clauses should be inserted in separate contract, from the employment contract, which would stop the employee from getting the option of making a claim that they had no knowledge of such clause. Furthermore, the reasons for dismissal should always be provided to the employee, along with the chance of being heard.
For avoiding such conflicting issues, it is advised to Des and Sarah to follow the guidelines which have been issued by ACAS, i.e., Advisory, Conciliation and Arbitration Service and that of CIPD, i.e., Chartered Institute of Personnel and Development. These guidelines have been summarized below.
A Code of Practice on Disciplinary and Grievance Procedures has been presented by the ACAS so as to help in the matters related to gross misconduct. This code provides that even if the case is of gross misconduct, it is crucial that a fair procedure has been adopted before any action is taken by the employer. Apart from this, it is crucial that a meeting is conducted with the employee, whereby they are given a right to appeal against the decision. It is also needed that the dismissal as a possibility is clearly communicated. Before dismissing an employee, it is crucial that they are suspended and even this suspension needs to be kept under a review. There is a need for the dismissal to be both reasonable and proportionate. Only in cases of gross insubordination, dishonesty or alcohol abuse is the immediate dismissal on basis of gross misconduct, without being given any warning, considered fair (Landau Law, 2017). In order to show good practice, the lawful rights and duties have to be complied with and the staff has to be properly supported, to keep them productive and motivated.
ACAS has major publications in the matter of sex discrimination policy, apart from the guidelines on health, work and well-being; supervisor and line manager skills; communications and consultation; contracts, terms and conditions; recruitment and induction; managing disputes and conflict redundancy, time off, holidays and flexible working; absence management; equality and diversity; discipline and grievance; restricting and change management; and managing performance and pay (ACAS, 2015). It is crucial that the human resource department of the company adheres to these guidelines for avoiding possible future conflict situations.
Two key models can be chosen by the companies, i.e., the contingency model and the high commitment model. Under the first one, a single style is deemed as insufficient in long run and so the issue is managed on the basis of the situation (Tamkin, 2004). This model is based on the notion that only distinctive combinations could effectively deal with the specified conditions. This proves helpful in learning from the particular circumstances and these being used as lessons for future.
In the second model, the management of employees is done on qualities of trust and self-regulation by the employees is given emphasis, instead of the situation being concentrated upon, which is controlled through external pressure. This practice results in the performance of the company being improved, along with that of the workers. This also assists in the level of labor turnover and absenteeism being reduced. Not only the adopted high commitment practices motivate employees, but also increases the job satisfaction, commitment and trust. This would help Des and Sarah being steered clear of such litigations in the future.
Conclusion
The discussion carried above highlighted the different features of employment law in UK, and the actions which can be brought out against the employer. However, the law provides proper safeguards to both employer and employee to save them from any unfair or unjust issue. Further, the good practices are evidenced from the guidelines provided by ACAS and CIPD. And an adoption of these can help the employer in avoiding the issues raised in the case study, in future.
The discussion carried above forms the base for recommendations to Des and Sarah. The first and foremost recommendation for them is to adopt the ACAS code, especially for the issue of grievances and discipline, since these would help them in dealing with the issues brought forward in the case study. It is also recommended to Des and Sarah to adopt the second model, i.e., the high commitment model of the CIPD for improving worker confidence and the relationship with them.
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