The document which governs an employee employer relationship is termed as the contract of employment. In this regard, it is worth noting that the terms depicted in the contract shall be binding upon the parties. Therefore, it is noteworthy to mention here that the terms depicted in the contract of employment bind both employee and employer however; legal claim is likely to arise in case of breach of such contract. Implied as well as express terms are important essentials of contract of employment (Holland, Burnett&Millington, 2015). The principles of employment law govern the terms of such employment contract.In UK sources of employment laws can be traced from the provisions of Common law and the European law. In this regard, it can be stated that in order to govern the relationship between an employer and employee a number of legislations has been passed under the UK Constitution which can be emphasized as- Redundancy Payments Act 1965, Transfer of Undertakings (Protection of Employment) Regulations 2006, National Minimum Wage Act 1998, Working Time Regulations 1998, Trade Union and Labour Relations (Consolidation) Act 1992, Health and Safety at Work etc Act 1974 and The Employment Rights Act 1996.
The identification of key legal issues which might be related to this scenario are that of a wrongful or unfair dismissal. When an employee is found to be terminated contrary to the terms provided in the service agreement then the following is said to be wrongful dismissal. The employer needs to grant the employee with a notice period which is of one week in case of a service for one month, couple of weeks for two of years of work done, and twelve weeks if the job is seen to be done for twelve year or more under section 86 of the ERA. If the legal procedure by which an employer can be dismissed is seen to be violated, then the employer is charged for wrongful dismissal (Dau-Schmidt, Finkin& Covington, 2016).
An employee has the freedom to raise a claim, If the disciplinary measures ought to be ensured for the timing he is been employed, which can happen if the employee is seen to be dismissed with lack of disciplinary measures. It has been apprehended by the court in the case of Gunton v Richmond-Upon Thames LBC [1980] ICR 755.
Section 94 to 134A of the act, provides which provisions in relation to an unfair dismissal where a claim can be made by the employee for being dismissed in an unfair way. This claim can be looked upon when the execution of the worker is not been assumed to have occurred for valid reasons which could be rightfully measured as fair.
The employer needs to provide with sensible reasons why he dismissed the employee, as it was found by the court, the case of British Home Stores Ltd v Burchell [1978] IRLR 379. Under such circumstances a three phase test was put upon to find out if the worker has wrongly dismissed the employee. First, It was seen whether or not the belief which the employer had regarding to the conduct of the misbehavior was legitimate. Secondly, if they could see a sensible opinion regarding that conviction and third a sensible investigation was carried out by the company regarding the situation (Walsh, 2015)
As per the situation Colin can make a claim for unfair dismissal. Colin might experience that the circumstances under which he is found dismissed is unfair. It is said to be the responsibility of an employer to make sure that the component of justice is been included I the removal. He might state that no fair or adequate reasons can be looked upon, which would led to the removal and are necessary according to ERA sec. 98(4).
Meanwhile, Julie can also put up a claim for unfair dismissal. In which she might state that she is unable to carry out the right towards her religion as it is been interrupted by the employer. It can also be allege regarding religious discrimination. According to the requirements of EA, no employer has the legal right to discriminate with any employee regarding their religion (Painter & Holmes, 2015).
Wrongful and unfair dismissal occurred in the case of Ali. Under such situation if Ali has not got a notice phase beforehand, he can put up a claim regarding to wrongful dismissal. As well as, he can allege of being dismissed unfairly under the requirements of fairness by the company.
The comparative weaknesses and strength of the claims are discussed in this segment of paper, which have been identified above.
Particularly, the ERA as well as common law provisions deal with the circumstances which are related to a wrongful or unfair dismissal (Watson, 2014). In the above given conditions, Colin was found to be terminated due to misbehavior which is seen to be carried out by him regarding the company. As it is seen that the behavior was found to be done when Colin was not in the scope of employment but still he has been dismissed. A three phase test was given up by British Home Source Limited v Burchell case, the application of which would find out if the dismissal will result to unfairness or not. It is evident from the case study that a strong belief is held by the employer that the behavior which has been committed by Colin would have a negative impact on the reputation of the organization in the society. As an employee it was also the duty of the Colin to ensure the employer’s best interest as he is in a fiduciary relationship with the employer. However the duty was breached as Colin acted contrary to the interest of the employer. In addition appropriate investigation had also been carried out by the employer in relation to the circumstances.
The judgment of terminating an employee was fair and reasonable or not is analyzed through comparison with the conclusion of a sensible employer under the similar circumstances. Any sensible employer would have terminated Colin regarding the misbehavior done by him. This rule has been provided under the landmark case of St Anne’s Board Mill Co Ltd v Brien [1973] ICR 444.
As the employers are seen to prevent Julia from expressing her religious values, she has the right to show up with a strong claim of discrimination regarding one’s religion under the EA. The claim will be in relation to indirect discrimination under section 19 of the EA. The case of Begum v Pedagogy Auras UK Limited [2015] UKEAT present us that if an employer is seen carrying out any sort of religious intolerance in which the employee is found to be handled in an unreasonable manner due to any religious procedure. Meanwhile, in case of Grainger plc v Nicholson [2010] IRLR 4 it has been elaborated by the court that a claim for discrimination was eligible to be dismissed if the act was relatable to a legitimate employment necessity. The claim was seen to be dismissed, because the defense clearly stated that the grounds on which Julia is not permitted to wear a neckless is only for the protection of the patients and for none other cause.
A clear claim of an unfair dismissal is seen arising in the case of Ali. It is clear that the employer needs to provide with a payment or a notice phase instead to the employees who have been removed but have been working for one month. The circumstances given upon states that, Ali had been employed by the company for nine months, therefore he should have been given a notice period before hand by the employer. Under such circumstances the employer is seen with lack of defense. The if application of the claim under s. 86 ERA is made by Ali it will put him in a strong position.
The Equality Act 2010 is the primary legislation in the United Kingdom which deals with law of providing equality to the people in the society. The primary purpose of the legislation is to ensure that everyone is treated equally in the society and not provided and unfavourable treatment because of a special characteristic they possess. There are specifically eight characteristics which are provided protection by the provisions of the EA including age, religion, disability, marital status gender, sexual orientation, race, matrimonial status and gender reassignment. Section 13 of the EA further clarifies what accounts to direct discrimination. If a person provides derogatory treatment to another person because he or she has a protected characteristic when compared to another person who does not have the protected characteristic in context it accounts to discrimination irrespective of whether it is intentional or not. A Right is provided to the employer under the EA to claim a defence that the conduct of the employer is purely a result of an occupational requirement. Section 19 of the EA deals with indirect discrimination. It provides that when rules and regulations are initiated in a workplace which places a person with protected characteristics to a disadvantage compared to those who do not have the characteristics indirect discrimination takes place. Discrimination is analysed based on an objective test rather than a subjective test as made clear by the case of United First Partners Research v Carreras [2018] EWCACiv 323. This signifies that when a person possesses a protective characteristic and has been subjected to an unfavourable treatment a claim for discrimination initiates. The rule has also been discussed in the case of CentrepointSoho Ltd v OmaboeUKEAT/0129/17/BA. Annabel like other employers has to make sure that in the workplace any employee who has a protected trait should not be subjected to a derogatory treatment. Organisations suffer significant losses in relation to discrimination claims and if it is held that discrimination has taken place her organisation would also be liable.
Employee satisfaction is enhanced where a safe and healthy working environment is provided to them by the employer. Where there is no discrimination in the workplace the employees feel good about working for the employer and provide additional effort towards the business. It is also the duty of an employer to take into consideration the special requirement in relation to disability discrimination. A person may claim disability discrimination if the employer fails to make reasonable adjustment which are provided in section 20-22 of the EA. The employer should also not charge any money from the employee for making such adjustment. Further along with discrimination the issue in relation to victimization and harassment in the workplace also needs to be addressed by the employer. The Equality Act also deals with such issues in the workplace. Any act of harassment or victimization in the workplace makes the employer liable for actions done by other employees. Therefore in the given situation Annabel needs to take into consideration all these provisions towards ensuring a safe and discrimination free working environment at Carling UK Ltd. This would further ensure that the organisation is not subjected to any legal liability which may arise out of non compliance with the provisions.
Owners of businesses operating in the United Kingdom have to comply with the provisions of Transfer of Undertaking (protection of employment) Regulations commonly called TUPE when they face an issue in relation to transfer of their business to another employer. The regulation deals with the situation where the transfer of jobs from one owner to another owner takes place. The regulation stimulates that when the employment contract is transferred from one employer to another employer the terms and conditions of the contract remains the same as it was under the initial employer. The regulation further imposes an obligation upon the employer who is transferring his business to another person to inform and consult the representatives of the employees before the transfer takes place. All provisions in relation to the transfer has to be communicated by the employer to the Employees. The regulation further imposes and obligation on the new employer to accept the terms and conditions of the employment contract as they were with the old employer. In addition just for the purpose of meeting the needs of the new employer the rights provided under the previous employment contract cannot be changed as per the regulation. Relevant consent of all parties involved in the transfer is required before the employees are actually transfer to the new employer. Further an obligation is imposed on the new employer that the old employees cannot be made redundant only because of the fact that they belonged to an old employer. Any attempt to make employees redundant because of transfer in business may lead to an unfair dismissal claim unless there are fair and just reasons for making them redundant. All alternative have to be analysed before an employee is dismissed under the regulation. These steps have been provided through the case of Williams v CompairMaxam Ltd [1982] ICR 156. Where an employee do not accept altered terms of the employment contract which may be justified in the given circumstances he or she cannot claim protection under the TUPE as per the case of Hollister v National Farmers’ Union [1979] ICR 542.
Where any of the provisions provided under the regulation is violated the employees have the right to make a compliant to the employment tribunal. The employment tribunal may provide the employees with Information and consultation awards, Unfair dismissal awards and Detriment awards. Conciliation services may also be ontained under ACAS.
Therefore it is best advised to Annabel to follow diligently the provisions laid by TUPE while transferring the business to a new employer in order to avoid any legal liability which may arise under the regulation.
Conclusion
It is important on the part of employee as well as employer to abide by the principles of ethics. In the answer 1 it has been witnessed that employers are bound to abide by certain statutory provisions when dismissing an employee. If the employers do not follow the rules of ethics otherwise he shall be entitled to risk of wrongful dismissal. In the second answer it can be observed that the employers are bound to follow certain procedural rules in order to deal with cases involving employee dismissal otherwise they will be subjected to a claim of unfair dismissal. It is important on the part of the employers to treat his employees equally and any kind of discrimination is not allowed which is based on the protected traits of the employees or on the basis of any of the traits mentioned in the third answer. The productivity of the organization increases overtime if workplace diversity exists and therefore in such processes the knowledge of the employees increases. Therefore, it is essential that the employers should follow the provisions of TUPE while dealing with the process of employee redundancy as per fourth answer. However, in this regard, the employer is at the responsibility to abide by the practices of good governance and recruitment in good faith However, there must be no discrimination in the recruitment process. It is evident that discrimination not only violates the provisions of legal principles but also badly affects the normal working environment of an organization. In this regard, it is worth mentioning that the employees should not be terminated without providing proper justification otherwise it may subject to wrongful dismissal.
It is important on the part of Carling UK Ltd to restrict itself from involving in to any form of discrimination in the organization and during the recruitment process for the purpose of ensuring efficient working environment. It is essential that Carling UK Ltd must adopt different programs and policies in order to enhance effective working of the employees thereby promoting employee development. The work culture as well as the work life balance of the employees must be focused as well. Lastly, employees should not be dismissed from Carling UK Ltd without hearing proper justification and without reasonable cause. They must also ensure enhancement of employee satisfaction to increase their productivity. This can be done by providing the employees a healthy and safe workplace where they feel good to work.
References
Begum v Pedagogy Auras UK Limited [2015] UKEAT
CentrepointSoho Ltd v OmaboeUKEAT/0129/17/BA
Craven, J. A. (2016). The Employment Relationship. NY Practice Guide: Business and Commercial, 4.
Dau-Schmidt, K. G., Finkin, M., & Covington, R. (2016). Legal protection for the individual employee. West Academic.
Grainger plc v Nicholson [2010] IRLR 4 (EAT)
Gunton v Richmond-Upon Thames LBC [1980] ICR 755.
Holland, J. A., Burnett, S., & Millington, P. (2015). Employment Law 2016. Oxford University Press.
Hollister v National Farmers’ Union [1979] ICR 542.
Painter, R., & Holmes, A. (2015). Cases and materials on Employment Law. Oxford University Press, USA.
Research v Carreras [2018] EWCACiv 323.
St Anne’s Board Mill Co Ltd v Brien [1973] ICR 444.
Transfer of Undertaking (protection of employment) Regulations 2006
United First Partners Research v Carreras [2018] EWCACiv 323
Walsh, D. J. (2015). Employment law for human resource practice. Nelson Education.
Watson, P. (2014). EU social and employment law. Oxford University Press.
Williams v CompairMaxam Ltd [1982] ICR 156
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