Whenever it comes to the discussion of the relationship between employer and employee in an organization, some legislation, rule, and regulations play a vital role. Every nation has it is a separate law to regulate the subjective relationship. Similarly, in the UK, some of the legislation are there which are commonly known as Employment Law. Judges refer these laws while granting decisions in the cases related to employment disputes. For this report, a case scenario is presented which is related to the dismissal of an employee. In the provided case, there is an issue of missing money in a small cafeteria and a pregnant employee is suspected for the same. In the presented advice paper, the focus will be made on related laws and rules related to the problem stated in the provide case and afterward, the advice will be granted to the employer. In order to provide this advice, the report will also include some of the past cases that have happened in the history of employment law and are significant to discuss here. The report will further be explained and bifurcated in some of the headings and sub-heading.
In order to check the scope of the employment laws in the UK, this is to be stated that the same includes many of the issues and aspects such as discrimination, the relationship of employees and trade unions, the relationship of employees and so on. The lead aim of employment law is to promote a healthy relationship between employees and another group of managers in addition to create a safe and healthy workplace. Further, these employment laws provide fines and penalties for the cases off breaches. If to talk about anti-discrimination law of the nation, the most significant one to study is Equity Act 2010. As the name implies, this act develops it is focus towards the aspects related to discrimination and equity. The same can be treated as Anti-discrimination law of the nation. The main vision of the act is to ensure no discrimination exist there between two or among one or more employees in an organization (Equalityhumanrights.com, 2017). The act came into force with effect from 1 October 2010(Davies, 2011). The act is also significant for another reason, which is harmonization of nine legislations in the same, which included Race Relations Act 1976, Disability Discrimination Act 1995 and the Employment Equality (Age) Regulations 2006.
Under Equity Act, 2010, many of the provisions related to anti-discrimination are mentioned. Firstly, the act provides a definition of discrimination. According to this act, discrimination can be understood by a situation where an employer treats one or more employees unfairly or less favorably in comparison to others based on some of the personal characteristics. These characteristics are also known as grounds of discrimination. These grounds include the factors of an employee such as race, religion, sex, disability, sexual orientation, pregnancy, and maternity. Therefore, in order to comply with the provisions of this act, an employer must not make any discrimination among his/her employees. The act not only provides anti-discrimination law in the sector of employment, but the same prevent the issue of discrimination:
The act highlighted 6 kinds of discrimination based on their nature. Among these six, two are major i.e. direct discrimination and indirect discrimination. These are further defined as below:
An employer has a right to dismiss an employee but there must be a valid reason for the same. It means the ground of dismissal must not be discrimination or any other invalid or unethical act of an employer. There are some reasons for which an employer can dismiss the employee. These reasons are can be the conduct of an employee, the requirement of a law, incapability of an employee to carry on the work, or redundancy (Nidirect.gov.uk, 2018).
Termination based on conduct:- It is a situation where an employer finds the issue of misconduct on behalf of an employee. In such a situation, there are chances of discrimination. How to judge the conduct of an employee? It becomes an issue. Whenever an employer thinks of to terminate an employee based on his/her conduct then there is a possibility that the employee can initiate an action of unfair dismissal against the employer. In such a situation, an employer needs to keep some points in consideration. The case of British Home Stores Ltd v Burchell [1978] ICR 303 is an important case in the history of labor law. The case is related to misconduct and unfair dismissal. The case is necessary to study here as the same is similar to the provided case for this advice note. In the given case, the employer was in doubt about the misconduct of an employee and therefore he dismissed the employee. Employee initiated an action against the decision of the employer in an employment tribunal. The tribunal provided a decision in favour of the employee and held the dismissal of the employer as an unfair one. Later on, the employer made an appeal to employment appeal tribunal where the appeal has been allowed. In the reasoning of the decision, the EAT has been provided three conditions which are needed to be satisfied for dismissal in cases of employee misconduct. These conditions are as follow:
All the above-mentioned conditions are known as Burchell test in common. Employment Tribunals uses this test to check that whether a dismissal is reasonable or not (Blakemorgan.co.uk, 2015). The case is also important for the reason that in the court has avoided the requirement of an actual proof and allowed the decision based on above three factors. The existence of following situations can held a decision of dismissal unreasonable:-
In order to provide advice to Adam, it is to be stated that he must ensure the compliance of all the conditions of Burchell test. Here in the given case, Adam being an employer had doubt on the conduct of one of the employees named Jane because she was looking very agitated when Adam was explaining the incident of missing money to the staff. Here the first condition of the test gets satisfied. Moving towards another condition, Adam had reason to believe that Jane was guilty of misconduct as another employee, Hillary saw Jane acting suspiciously and informed the same to Adam. To satisfy the third condition, Adam is advised to investigate the whole issue before dismissing Jane. Although Adam can dismiss her even without doing so, but the same will be considered by the tribunal in further proceedings. For a successful claim, it is advisable to Adam to follow the prescribed procedure under law.
As the name states, these guidance notes provide the essentials and manner that an employer must be assured with while dealing with a matter of dismissal based on the misconduct of an employee. As mentioned in the last requirement of Burchell test, an employer must follow a proper procedure of investigation; the subjective guidance provides this manner (Acas.org.uk, 2015).
Here According to the requirements of this guidance, the following are some of the key tasks that Adam must do and keep into consideration while carrying out the investigation in the provided case:-
In addition to the above two, many other requirements are prescribed under the ACAS guidance in relation to documentation before the meeting, handling of investigation meeting and gathering of evidence. Adam is required and advise to follow each of these steps (Ranken, 2010).
Pregnancy and discrimination: – Pregnancy is one of the protected characteristic under Equity Act 2010, based on which discrimination is not allowed. Many of the cases have happened in the past where employees claimed that they became a victim of discrimination and unfair dismissal because of the pregnancy. In this matter, Adam needs to be careful as a dismissal of Jane can lead the issue of unfair dismissal. However, it is not prohibited to dismiss a pregnant employee when she is guilty of misconduct; however, such an employee requires more care and attention because of physical condition. Following are some of the point that Adam needs to consider while dealing with the issue of the thief:-
After keeping all the above-mentioned point and by following the same, Adam can investigate the matter and can also dismiss Jane if he think the same right.
Here, there is another term, which Adam needs to know. A gross misconduct is a kind of serious violation of rules by the employee or a professional. There is a difference between misconduct and gross misconduct. The difference is required to study as the tribunal considers the same while declaring a dismissal fair or unfair. Gross misconduct can be understood as a gross negligence or deliberate wrongdoing on the part of the employee that is so serious, can fundamentally undermine, and harms the relationship of an employer and employee (Bishop and Crooks, 2016). People generally think that an incident of fraud and thief consider as a gross misconduct but the same is not true always. For a gross misconduct, an employer is not required to serve the notice and an employer can summarily dismiss an employee (Cartwrightking.co.uk, 2018). However, in an ordinary misconduct, the employer is required to serve the notice to employee according to the terms and conditions of their employment agreement. It was given in the decision of the case of Weston Recovery Services v Fisher UKEAT/0062/10/ZT that if an employee act negligently or even deliberately and organization faced a loss then too, the seriousness of the act need to be check (Employmentcasesupdate.co.uk, 2010). After reviewing the situation stated in the provided case, this does not seems to be a gross misconduct. Adam can provide another chance to Jane if prove guilty as the same is an ordinary misconduct. In this case, he is advised to resolve the matter by giving a warning to Jane. If Adam would dismiss the Jane without a proper notice, then there is a possibility that tribunal can held the action invalid as the misconduct is not so serious that can be titled as gross misconduct.
Conclusion
In conclusion, this is to advise that pregnancy of Jane cannot prevent Adam to initiate any action against her. Here, some money is missing and there is a mismatch between the takings and the total amount reflected in the receipts. Applying the Burchell test, there is no requirement to have an actual proof against a suspected employee. Adam has a doubt on Jane and because of the noting of another employee, he also has reason to believe on the same. He can proceed with the investigation according to the ACAS guidance. However, because of the pregnancy of Jane, Adam needs to be more careful. There is a high chance of allegation of discrimination based on her pregnancy. Further, chances of unfair dismissal are also there, therefore Adam can protect himself from these issues in the future by following all the required laws. In conjunction to the same, the subjective misconduct is an ordinary one and not the gross, and for this reason, Adam is required to serve the notice according to the contractual agreement or of the period as specified under law. He cannot serve lesser notice to Jane because of the reason that she is a part-time employee. In conjunction with this, Adam is required to provide the right to be accompanied to Jane because of her pregnancy as she is already agitated. After conducting the investigation meeting, Jane can take a decision to dismiss her if he believes her to be guilty.
References
Acas.org.uk. (2015) Conducting workplace investigations. [online] Available from: https://www.acas.org.uk/media/pdf/q/0/Conducting_Workplace_Investigations_Nov.pdf [Accessed on 10/12/2018]
Bishop, M. and Crooks, S. (2016) HR for Small Business For Dummies – UK. Cornwall: John Wiley & Sons.
Blakemorgan.co.uk. (2015) What constitutes a reasonable investigation? [online] Available from: https://www.blakemorgan.co.uk/training-knowledge/features-and-articles/what-constitutes-reasonable-investigation/ [Accessed on 10/12/2018]
Cartwrightking.co.uk. (2018) Gross Misconduct. [online] Available from: https://cartwrightking.co.uk/areas-of-practice/Employment/gross-misconduct/ [Accessed on 11/12/2018]
Citizensadvice.org.uk. (2018) Equality Act 2010 – discrimination and your rights. [online] Available from: https://www.citizensadvice.org.uk/law-and-courts/discrimination/about-discrimination/equality-act-2010-discrimination-and-your-rights/ [Accessed on 10/12/2018]
Davies, A. (2011) Workplace Law Handbook 2011: Employment Law and Human Resources.Cambridge: Workplace Law Group.
Disability Discrimination Act 1995
Employment Equality (Age) Regulations 2006
Employmentcasesupdate.co.uk. (2010). Weston Recovery Services v Fisher UKEAT/0062/10/ZT. [online] Available from: vhttps://www.employmentcasesupdate.co.uk/site.aspx?i=ed6358 [Accessed on 11/12/2018]
Eoc.org.uk. (2018) The Equality Act. [online] Available from: https://www.eoc.org.uk/the-equality-act/ [Accessed on 10/12/2018]
Equalityhumanrights.com, (2017) What is the Equality Act? [online] Available from: https://www.equalityhumanrights.com/en/equality-act-2010/what-equality-act [Accessed on 10/12/2018]
Equity Act 2010
Legislation.gov.uk. (2018) Direct discrimination. [online] Available from: https://www.legislation.gov.uk/ukpga/2010/15/section/13 [Accessed on 11/12/2018]
Nidirect.gov.uk. (2018) Fair reasons for dismissal. [online] Available from: https://www.nidirect.gov.uk/articles/fair-reasons-dismissal [Accessed on 10/12/2018]
Personneltoday.com. (2008) How to take disciplinary action against an employee during pregnancy or maternity leave. [online] Available from: https://www.personneltoday.com/hr/how-to-take-disciplinary-action-against-an-employee-during-pregnancy-or-maternity-leave/ [Accessed on 10/12/2018]
Race Relations Act 1976
Ranken, W., B. (2010) Employment 2010. London: NCVO.
Street, T. (2016) Gross Misconduct and the Burchell Test. [online] Available from: https://www.tribunalclaim.com/gross-misconduct-burchell-test/ [Accessed on 10/12/2018]
Swarb.co.uk. (2018) British Home Stores Ltd V Burchell: EAT 1978. [online] Available from: https://swarb.co.uk/british-home-stores-ltd-v-burchell-eat-1978/
Weston Recovery Services v Fisher UKEAT/0062/10/ZT
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