The contract of employment is the document through which the relationship between an employer and an employee is governed. A contract is a legal document the terms of which are binding upon the parties to it. In the same way in an employment contract the terms of the contract are binding on the employer and the employer and where such terms are breached a legal claim may arise. An employer contract in the same way as a contract contains both express and implied terms. The terms of the contract are subjected to the provisions of employment law.
In UK employment law is sourced from European Law provisions, Common Law and legislation. A few legislations which have been passed in UK for governing the relationship between the employee and the employer are as follows.
1.This section of the paper discusses the legal risks which have been identified in relation to the Newcastle office.
The primary legal risk which has been identified in relation to the scenario is that of unfair or wrongful dismissal. Wrongful dismissal takes place when the way in which an employee has been terminated is against the terms of the employment contract. According to section 86 of the ERA it is the duty of the employer to provide the employee a notice period of a week in case of a months’ work, two weeks where the work has been done for two years and twelve weeks when the work is of more than 12 years. A wrongful dismissal therefore arises when the employer fails to comply with the legal process of dismissing an employee.
In the case of Gunton v Richmond-Upon Thames LBC [1980] ICR 755 it had been held by the court that where an employee has been dismissed without a proper disciplinary proceeding he has the right to make a claim for the period he would have been employed if the disciplinary proceeding was ensured.
A claim in relation to an unfair dismissal is brought under the provisions of section 94 to 134A of the ERA. The claim arises when the termination of the employee cannot be said to have happened for reasons which are statutorily considered as fair.
In the case of British Home Stores Ltd v Burchell [1978] IRLR 379 it had been found by the court that it is upon the employer to provide that the reason for which the employee has been dismissed was fair. In this case a three stage test had been provided to determine that whether the employer has unfairly dismissed the employer or not. Firstly was the belief of the employer in relation to the occurrence of the misconduct was genuine. Secondly was there a reasonable ground in relation to belief and thirdly was reasonable investigation was carried out by the employer in relation to the situation.
In the given situation a claim for unfair dismissal can be made by Colin. He may feel that the ground on which he has been dismissed is unfair. It has been stated 98(1) of the ERA that while dismissing an employee it is the duty of the employer to ensure that the element of fairness has been included in the dismissal. He may claim that there have not been fair and sufficient reasons which led to his dismissal which are required under the ERA section 98(4)
On the other hand the claim for unfair dismissal may also be brought by Julie. She may make a claim that the employer is not providing her the right to practice her religion. The claim may also be a claim for religious discrimination. An employer as per the provisions of the EA does not have the right to discriminate with an employee because of one’s religion.
In the case of Ali a claim for both unfair and wrongful dismissal may take place. In this case Ali can make a claim in relation to a wrongful dismissal because he has not been provided a notice period. In addition he may claim that he has been dismissed unfairly by the employer as the provisions of fairness.
2.This section of the paper discusses the relative strengths and weaknesses of the claims which have been discussed above.
The provisions of the ERA expressly deal with the situation of an unfair or wrongful dismissal. The situation is also addressed by common law principles. In the given situation it has been stated that Colin has been dismissed because of a misconduct which has been committed by him in relation to the company. A strong basis for the claim can be in relation to unfairness as the conduct was not done in the course of employment. Whether the dismissal would account to unfair or not can be determined by the applications of the three stage test provided by the case of British Home Stores Ltd v Burchell. In the given situation it can be stated that the employer has a belief that there was a genuine misconduct which has been made by Colin by defaming the organization on social which has lead to significant damage of reputation. A reasonable ground for the belief also existed as it was evident that the employee has expressed himself on social media which is contrary to the fiduciary duty of mutual trust and confidence and ensuring the interest of the employer owed by the employee. The employer also investigated into the matter
In the case of St Anne’s Board Mill Co Ltd v Brien [1973] ICR 444 it had been held by the court that whether the decision of termination was reasonable or not is analyzed be comparing the reason with the decision of a reasonable employer in the same situation. A reasonable employer in the same situation also would have dismissed Colin for the gross misconduct committed by him.
A strong claim of discrimination based on religion can be made by Julia in the situation as the employers are preventing her to express her religious belief. In the case of Begum v Pedagogy Auras UK Ltd [2015] UKEAT it had been provided by the court that an employer commits religious discrimination were the employee treated in an unfair manner because of any religious policy. However in the case of Grainger plc v Nicholson [2010] IRLR 4 (EAT) it had been stated by the court that a claim for discrimination can be dismissed where the act was in relation to a genuine employment requirement. In the given situation there is a clear defense that the reason why Julia is not allowed to wear the neckless is strictly for the safety of the patients and not for any other reason. Thus the claim may be dismissed.
In the situation of Ali a clear claim for wrongful dismissal may arise. This is because it the duty of the employer to provide notice period or a payment in lieu off notice to those employees who have been dismissed and have been working for more than a month. In the given situation it is provided that Ali had been working with the organization for a period of nine months and thus he was required to be provided a notice period by the employer. There is no defense which is available for the employer in the given situation. The claim which Ali can make is very strong through the application section 86 of the ERA. In addition reference requires of Ali has been rejected by stating that he was not trust worth. In these circumstances equity may be claimed by Ali against the unfair treatment by his ex employer.
3.The principle that people have to be treated based on their character rather than other irrelevant status for fostering social inclusions have been embodied in the Equality Act 2010. There are nine special characteristics which are stated as special or protected characteristics by the EA. These include sexual orientation, gender, religion, age, disability, marital status, matrimonial status and race. The concept of direct discrimination takes place in situation where employees are provided with less favorable treatment as they possess one of the above special characteristics when compared to another person not having such characteristics in the same situation as per section 13 of the EA. The employer has the right to prove before the court that the unfavorable treatment is solely based on a pure occupational requirement. On the other hand indirect discrimination takes place in situation where same rule has been applied for all but the rule is derogative for a person having a protected characteristic and the rule is not objectively justified. In the case of James v Eastleigh BC [1990] 2 AC 751 it had been ruled by the court that the employer may be liable for a claim of discrimination even where there was no intention to indulge in such actions. The test for determining discrimination is objective rather than subjective. In the case of R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2005] 2 WLR 1 it had been ruled by the court that merely the reason for the unfavorable action being the special trait is enough for the discrimination. Thus in the given situation it is the duty of Annabel to ensure that no employee working for the organization is subjected to a unfavorable treatment because of their protected traits. Her organization may even be held liable in the situation where the unfavorable treatment was unintentional.
In circumstances where the employer ensures that no discrimination takes place within the work place a healthy working environment is created. Incorporating good HRM practices enhances the satisfaction of the employee which results is stronger employment relation and eventually better performance. In addition to direct and indirect discrimination it is also the duty of Annabel to ensure that she makes reasonable adjustments for those employees who are working with a disability. An employee who has disability has to be provided with “reasonable adjustments” so that he can function properly and not subjected to any detriment. According to section 20-22 of the EA it is accounts to discrimination where the employer fails to provide reasonable adjustment to a disabled employee. It is also the duty of Carling UK Ltd to address any situation of victimization and harassment within the work place the EA through section 26-40 expressly prohibit harassment or victimization at the work place. The employer may be liable for any victimization or harassment which has been done to an employee by another employee. It would be deemed that the employer has intervened in the situation where the action has taken place on two or more instances.
4.The situation where the employer transfers the business to another employer dealt under the provisions of Transfer of Undertakings (Protection of Employment) regulations (TUPE). TUPE is applicable on those employees who are working for business organizations in UK. When TUPE is applicable the job of the employees are transferred to the new employer. There may be an exception to this rule which is when the employees are made redundant or the business has become insolvent. The terms and condition of the employment also transfers and continuity in relation to employment is also maintained. Both business and service provisions changes fall under TUPE. It is the obligation of the employer to consult and inform the employees in relation to the business transfer. The employer has to notify the employees when and why the transfer is taking place, how is the transfer going to affect them. Under the provisions of the TUPE the new employer is the other party of the employment contracts of the business and as a result undertakes all the previous terms and conditions of the contract of employment. The new employer is also responsible for the actions of the previous employer. It is the right of the employees to restrain from working for the new employer. In this situation no notice is required and the employees merely resign without any redundancy pay. The previous employer does not have the right to change the terms of employment contract merely to meet the needs of the new company. In the case of Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 it had been held by the court that transfer of employment contract cannot be made without taking consent of all the involved parties. The new employer cannot make the employees redundant only because they have been transferred from a previous employer. In situation where the employees can be made redundant have to be only in relation to technical, organizational or economic reason. However in the case of Hollister v National Farmers’ Union [1979] ICR 542 it had been held by the court that where the employee has not excepted the new terms of the employment contract which are justified it results in a fair dismissal. A few proper steps had been prescribed through the case of Williams v Compair Maxam Ltd [1982] ICR 156 in relation to the employer. These include providing all possible warnings, consulting the union, agreeing on objective criteria, following the criteria and checking whether alternative scope for employment exists rather than dismissal. Thus while transferring the business to the new employer it is the duty of Carling UK Ltd to take into consideration the provisions provided by TUPE as well as common law in relation to redundancy.
Conclusion
Ensuring ethical and legal principles in employment relationship is significant for both the employer and the employee. It has been seen in task one that the employers have to follow the statutory procedure of dismissing an employee or that would be subjected to a risk of wrongful dismissal. In the send task it is clear that procedural fairness has to be observed by the employer while dismissing the employees or they may be a defendant to a claim from unfair dismissal. The employers must also not discriminate with the employees based on their protected traits or on any trait as per the third task. Finally employers have to abide by the provisions of TUPE in relation to making employees redundant. The employer has the essential obligation of following good practices in the process of recruitment and general governance. According to Kornhauser (2014) inclusion of diversity within the workforce enhances the productivity of the organization as employees get to learn more from different cultures. The employer must not discriminate with the employees in the process of recruitment and selection as well as any other sphere of employment. Other than for a pure business requirement discrimination not only attracts legal liabilities but also degrades the working environment. The employers must also not dismiss any employee without a reasonable cause or in an improper manner otherwise it would result in unfair or wrongful dismissal.
References
Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery) (Religion or Belief Discrimination) [2015] UKEAT
British Home Stores Ltd v Burchell [1978] IRLR 379
Employment Relation Act 1996
Equality Act 2010
Grainger plc v Nicholson [2010] IRLR 4 (EAT)
Gunton v Richmond-Upon Thames LBC [1980] ICR 755
Hollister v National Farmers’ Union [1979] ICR 542
James v Eastleigh BC [1990] 2 AC 751
Kornhauser, A., 2014. Psychology of labor management relations. LERA For Libraries.
Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014
R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2005] 2 WLR 1
St Anne’s Board Mill Co Ltd v Brien [1973] ICR 444
St Anne’s Board Mill Co Ltd v Brien [1973] ICR 444
Transfer of Undertakings (Protection of Employment) regulations (TUPE).
Williams v Compair Maxam Ltd [1982] ICR 156
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