The legislations dealing with employment law in the United Kingdom shall govern the relationship between the employers and the employees. It regulates the expectation of the employers from their employees and the expectation that the employees have from their employers. It further deals with the rights and obligations of the employers and employees in an organization. The most common employment legislations that governs the relationship between the employers and the employees include Employment Relations Act 2004, Disability Discrimination act 2005, Equality Act 2010, Sex Determination Act 2005, Health and Safety Work Act 1974, etc. It is essential to maintain good employment practices at workplace to ensure compliance and healthy employment relations. However, non compliance with the employment related rules and procedures shall result in financial losses and imposition of statutory penalties. Both the employers and the employees are under statutory obligation to ensure that they adhere to the rules and regulations related to workplace with the common objective to achieve the organizational goals and objectives.
Joan Keenan
The rejection of the application provided by John gives rise to the first legal risk associated with employment law is the risk of Sex determination. According to section 11 of the Equality Act 2010, any form of discrimination against any employee is strictly forbidden within the organization. It is apparent from the facts of the given scenario that Keenan has been rejected from the post of the sales manager on the ground that she is a woman and shall not be able to deal with the sales team that predominantly comprises older males. The rejection of the application on such ground amounts to gender discrimination that is in contravention of section 13 of the Act, which prohibits direct discrimination within a workplace. ABC Ltd shall be held liable under the Equality Act as was observed in the case James v Eastleigh Borough Council [1990] 2 AC 75, in the event, if Keenan is able to establish that she has received unequal treatment on her being a woman (protected characteristics).
The rejection of application made by Aldo shall give rise to the legal risk associated with race discrimination. Under the Equality Act (EA), race falls within the category of protected characteristics, which states that employees cannot be treated less favorably on the ground of race (Herriot 2013). According to section 39 of EA, employees having protected characteristics are safeguarded from being discriminated during the recruitment process and the process of dismissal and promotion. In Northern Joint Police Board v Power [1997] IRLR 610, the court held that discrimination on the ground of nationality amounts to racial discrimination. Therefore, rejection of Aldo’s application shall make the employer liable for racial discrimination as he immigrated from Milan in 1980.
As per the factual scenario, the application made by David was rejected on the ground that despite being a good performer, he was aged about 61 years. He is about to retire and his wife had not been well which required constant attention. The action undertaken by ABC Ltd shall be held liable for resulting in age discrimination under section 5 of the EA as David was subjected to unfavorable treatment on the ground of being aged, thus, amounting to workplace discrimination.
On the facts here, the ABC Ltd has selected Mike to be appropriate for the post of Sales Manager. Although there is no legal risk associated with the selection of Mike as the new Sales Manager, but ABC LTD can be held liable under the Common Law on the ground of conflict of interest and failure to work in the best interest of the company. Mike shares personal relationship with the directors of the company and his selection as the manager may give rise to legal actions caused by the shareholders of the company. They may claim that the directors of the company have failed to exercise their fiduciary duty conferred by Common Law to act in the best interest of the company in the event of any conflict of interest.
The proposed policy in relation to varied the payment arrangements of the employees from the fixed income to commission based income may result in contravention of employment contract. According to the Employment Rights Act 1996, the legal provisions govern the employment contract. The provisions stipulated under the Common law govern the law relating to employment contract where the parties are prevented from varying the contractual terms without mutual consent (Conley 2014). The payment procedure is an important criteria to determine employment status as well and the payment to employees is not based on commission which forms the payment for independent contractors. Therefore, changes proposed in the payment structure in the absence of the employees shall amount to an infringement of an employment contract.
A policy that purports to periodically dismiss the employee who is the poorest performer gives rise to the legal risk of unfair dismissal. In the UK, the Employment Rights Act 1996 deals with unfair dismissal of employees. The court in Orr v Milton Keynes Council [2011] EWCA Civ 62 has ruled that the dismissal of the employees should be done fairly giving the dismissed employee and opportunity to improve or justify their performance. The policies that compels an employee to work for additional hours may result in constructive dismissal in the form of resignation given by the employees due to such policies (Rumbles and Scott 2016).
The policy that compels the employees to undergo fitness test on a regular basis, and forcing the overweight to diet and compelling smokers to join the anti-smoking classes shall amount to a direct and significant contravention of the Human Rights Law under the Human Rights law 1998. This is because such policy shall deprive the employees of their right to enjoy their respective lives in their respective way.
Joan Keenan
In this case, there are certain defenses available that can be used by the company against the legal risk that may arise due to Sex Discrimination. According to section 19(2) of the EA, the employers must establish that their conduct or words was proportionate and that they merely intended to achieve their legitimate company goals and did not have any intention to discriminate Joan on the ground of sex.
As was observed in Porcelli v Strathclyde Regional Council [1986] ICR 564, the employers have defense that they can use against such allegation of discrimination. It requires them to establish that their conduct was justifiable as they purported to fulfill the company goals and such conduct was merely a genuine requirement for achieving the goals. Hence, as per the facts of the case, ABC Ltd can argue that the sole reason of rejecting her application was that being a woman it would have been difficult for her to deal with the clients, especially the male clients. The clients would equally not be as comfortable working under her, as they would have been with a male client. Nevertheless, this defense used by the company is not strong enough to defend themselves from the commission of sexual discrimination against Joan Keenan.
On the facts here, ABC Ltd can use the defense that incompetency in English shall not fulfill the requirement of the manager post in the company as it would disable Aldo to communicate with the clients of the company effectively. Further, the company must establish that the requirement is not sufficient to be selected as for the post of manager, competency in English is mandatory and quintessential for the organization as it deals with clients of diverse culture. This insufficient requirement has been stipulated under section 9 of EA.
In the case of Etam plc v Rowan [1989] IRLR 150, the court held that occupational defense is a strong defense that can be used by a company to establish that it did not commit any form of racial discrimination against any employee of the organization. Further, the company may use the defense stipulated under section 23 of the EA by establishing that there was an essential difference between Mike and Aldo, which led to the selection of the former for the post.
The company may use the defense against the alleged discrimination against David by stating that he reached the age of 61 and reached the age of retirement and the company wanted to hire somebody who shall be holding the post for a long time. In addition, David’s wife was unwell and required attention, which would have likely made David take early retirement. Hence, the company may use the defense used in Cross v British Airways plc [2005] that the rejection did not amount to discrimination, as it was a business requirement.
On the facts here, the company may use the defense that as per section 23 of EA that Mike fulfilled all the criteria for the post of the manager and had material differences between the other applicants.
The employer can vary the employment contract by serving sufficient notice to the employees. However, as per the facts of the case, since payment has been one of the conditions of the employment contract, hence, it shall become difficult to make a strong case against the claim (Conley 2014).
The Employment Rights Act 1996 governs the statutory rule with respect to unfair dismissal in UK. The employer must provide a justified reason for dismissing an employee. As per the facts of case, the policy purports to replace the employees on the ground that such person has performed poorly. On implementation of the organization, the company may not have any option to defend such policy (Harper, Estreicher and Griffith 2015).
The health and fitness policies of a company are implemented to ensure good health of the employee. Therefore, to introduce policies that compel the employees to change lifestyles of the employees is against the human rights. Hence, such policies can be implemented as recommendations and not as policies requiring strict adherence. The company, ABC Ltd, do not have any sufficient defense against the implementation of such health and safety policies in the company.
According to Kornhauser (2014), the term employment relationship governs the relationship between the employer and the employee within an organization. The employment relationship arises where an employee works or renders services under the specific conditions and instructions in exchange of remuneration. The definition of employment relationship includes the rights and obligations of the employers and the employees and ensures strong employment relations. This employment relationship is fundamental as it determines the nature and extent of the obligation of the employees. Employment relation establishes the culture within an organization and it enables the employer and the employees to understand each other and assists each other in dealing with the employment related issues
According to Harper (2015), the primary requirement to attain the success of the organization is to establish a strong employment relationship between the employer and the employee as it helps to attain other organizational goals. In case of existence of a strong employment relationship within an organization, it enhances the productivity and efficiency of the employees. A strong employment relationship ensures that the workplace is free from conflicts and enhances loyalty amongst the employees. The organizations that have invested in employment relations programs have experienced increased productivity. When the organizations ensure that the rights of the employees are not violated and they are provided with the scope of development opportunity, they tend to be local to the organizations resulting in high productivity.
In the case of ABC Ltd, the employment related issues that have arisen in the organization identified as dismissal, discrimination, human rights and the basic payment rights. The course of action undertaken by the organization signifies that the employees may feel insecure due to the involvement of the organization in discriminatory acts. The employees would realize that despite being a good performer they are being discriminated, hence, they shall not strive to enhance their productivity towards the organization. The selection of Mike for the post might occur to the other applicants that promotion can be obtained based on personal relations and not based on their merit.
In addition, the dismissal policy shall give rise to insecurity amongst the employees and the enhanced working hours shall affect the work-life balance, thus, leading to low productivity. Moreover, the health and fitness policy would place an unreasonable burden on the employees, which may result in constructive dismissal. The managers must initiate measures that prevent discrimination and other forms of inequality in the selection process, thus, ensuring that the employees work harder to achieve their individual as well as organizational goals.
Conclusion
It can be inferred from the above discussion that it is essential to adhere to ethical and legal compliance in the employment practices. It is equally important to ensure that good practices must be followed in the recruitment process assuring possible result for the organization. In the opinion of Kornhauser (2014), the inclusion of people belonging to diverse culture in the recruitment process is essential with respect to increased productivity within the organization. The line managers must ensure that they comply with legal provisions involved in the recruitment process such as prevention of discrimination to avert penalties. While recruiting an employee, the Human Resource managers and line managers must base the recruitment on merit and not on any other feature. ABC Ltd must not implement any policy or initiate any measures that may affect the employment relations and the image of the organization.
References
Conley, H., 2014. Trade unions, equal pay and the law in the UK. Economic and Industrial Democracy, 35(2), pp.309-323.
Cross v British Airways plc [2005].
Disability Discrimination act 2005
Employment Relations Act 2004
Equality Act 2010
Equality Act 2010
Etam plc v Rowan [1989] IRLR 150
Harper, M.H., Estreicher, S. and Griffith, K., 2015. Labor Law: Cases, Materials, and Problems. Wolters Kluwer Law & Business.
Health and Safety Work Act 1974
Herriot, P., 2013. The employment relationship: A psychological perspective. Routledge.
Human Rights Act 1998
James v Eastleigh Borough Council [1990] 2 AC 751
Kornhauser, A., 2014. Psychology of labor management relations. LERA For Libraries.
Marchiondo, L., Ran, S., Cortina, L., Colella, A. and King, E., 2015. Oxford handbook of workplace discrimination.
Northern Joint Police Board v Power [1997] IRLR 610
Orr v Milton Keynes Council [2011] EWCA Civ 62
Porcelli v Strathclyde Regional Council [1986] ICR 564
Rumbles, S.D. and Scott, P.J., 2016. Managing the employment relationship. In Leading, managing and developing people. CIPD Publications.
Sex Determination Act 2005
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