Employee Law and Relation - Assignment Example

Employee Law and Relation Introduction At the present corporate dominated industrial environment there are number of cases of industrial disputes relating to unfair dismissals. Increasing number of cases more than thousand on annual basis are being taken to Labour Court. In this backdrop The Employment Act 2002 gives a decisive relief to employees who will be the victims of unfair dismissal practices. According to the law in the United Kingdom, a worker cannot be unfairly dismissed by his employer. The right to complain about unfair dismissal and the right to seek redress for it is already incorporated in the act. This article analyses the basic requirement or what qualifies to bring a claim for unfair dismissals and reviews the recent judgments on termination of employment contract and leads to a broad understanding of what courts consider fair and unfair dismissals. It is requirement of law that any worker to sue their employer for unfair dismissal must firstly prove that he or she is an employee of the company. For any worker to sue his employer for the act of unfair dismissal it is necessary that he or she should be an employee within the meaning of Employment Rights Act 1996. The law explains employee as a person who is employed to provide services to a firm or company on continuous basis in return of some compensation, who doesn't provide the same services as a part of independent business. The Unfair Dismissals Acts 1977 to 2007 indicate that... "Any worker should be an employee working under a contract of service or employment" The basic element of such contract is about the relationship of the employer and employee which differentiates from a performer of service in return of payment that is a contractor. The contract of employment can be a verbal one if it is not a written one and it will exist since the employer and employee mutually agree to avail the services and pay for it. A contract of the employment consists of express terms and implied terms. Express terms explain the terms agreed between the employer and employee, which includes wages and anything, which is related to it. The express contracted terms may not be written one. The express terms may be found in pay slips, letters given to employees before or after he or she started working or in any letter the employee was asked to sign during the course of work. The implied contractual terms are general in nature relating to customs and practices in the working environment and the agreements reached between the trade union and employer. When a particular employment problem crops up it has to be ascertained that whether the employer is a worker. However, any document like, pay slips, the job advertisement any letter sent by the employer in possession of the employee itself will prove that he or she is worker of that company. Under the Unfair Dismissals acts 1977 to 2007 dismissal can happen when the employer resort to dismiss the employee with or without notice or employee terminates the contract because of the conduct of the employer If an employee is terminated the employer is liable to prove the reason for dismissal is a fair one. There are five fair reasons under the law (Citizens Information Board, 2010) Capability Conduct Redundancy Statutory Obligation Any other reasons such as business reorganization etc., A dismissal is considered to be automatically unfair if the employee is terminated on any of the these reasons Trade union membership Any opinion based on religion or politics Under any dispute of law where employee is a witness against employer Discrimination against race, colour and sex etc., Pregnancy or anything connected with pregnancy Availing of rights under labour laws Biased selection for redundancy To file a claim for unfair dismissal under the law the following requirements must be met The claim should be filled within 6 months from the date of termination. Under exceptional circumstances a period up to 12 months is allowed to file a claim. The employee must have 12 months continuous service, there are exceptions to this rule. Even if the employee has less than 12 months service he/she may bring a claim for unfair dismissal if he/she is dismissed for the reasons mention under unfair dismissal clauses. To bring a claim under unfair dismissal act the employee must have worked under a contract of service or employment and must have been dismissed in order to raise a claim. In constructive dismissal the employee resigns, but claims that his employer's conduct towards him was the reason to resign the job. If the employer disputes the dismissal, the onus of proving the dismissal lies with the employee, and then only the claim will continue to the next stage. If the employee qualifies under the unfair dismissals legislation he may bring the claim to The Rights Commissioner or Employment Appeals Tribunal. The EAT will issue a determination and there is a right of appeal by either party to the Circuit court from a determination of the Tribunal. The Unfair Dismissals Acts have been at forefront to safeguard the worker's rights and to provide redress when such unfair dismissals occur. To provide guidance for the companies and individual under the Unfair Dismissal Act, a Code of Practice on Grievance and Disciplinary Procedures (SI 146, 2006) was introduced. This code will help the companies and individuals while conducting disciplinary proceedings relating to unfair dismissals. These codes are based on natural justice and provide general principles of natural justice to adopt the fair procedures relating to employee dismissal. The principles demand that allegations or complaints raised against the employee prior to his dismissal must be set out in writing and must be given to the employee and he should be allowed to challenge it. The other important point in the code of practice is the right to reply or the right to representation in the event of any disciplinary proceedings. The code also advises that in any complaint against employee regarding his/her performance or conduct the employer should first try to solve through coaching or counseling than proceeding to disciplinary proceedings. The labour courts of late have taken very strong positions against employer who fails to follow good practices regarding unfair dismissals. The redundancy is one of the fair reasons for dismissal. However, even if a situation exists the worker can claim for unfair dismissal if the manner for declaring the worker as redundant is unfair. The case M/s Fulcrum Pharma (Europe) Ltd V Bonassera and another explains a unfair selection of redundancy(Nick Jew,2011). The worker was employed as a manager in HR function. In 2009 she was informed that she faced the risk of redundancy. There was no notice given to the other executive in the department. At the time of consultation the worker claimed that the other executive should have been declared redundant instead of her. But the employer dismissed the worker and she failed a claim. The ET found that the worker had been unfairly dismissed and employer had acted incorrectly. The EAT also agreed with the tribunal’s finding. Another fair reason of dismissal is conduct, but without adequate investigation an employee cannot be summarily dismissed for gross misconduct. The case Brown Vs Baxter and another t/a Careham Hall explains the discriminatory dismissal based on the conduct. (Nick Jew,2011). The claimant Emma Brown, worked as an assistant care manager at a residential care home for elderly run by respondents. Mr and Mrs Baxter. Mr Baxter gave one month’s notice in May 2008 to terminate Mrs Brown’s employment .During her notice period, a resident made a complaint about her carers which included the claimant. The following day Mr.Baxter called her to a meeting and raised the allegation of the previous day and further allegation relating to previous alleged incidents. He summarily dismissed her for gross misconduct and subsequently gave her new employer an unfavourable reference. This led to her losing her new employment. She brought a tribunal claim for unfair dismissal. The tribunal found the claims of automatic unfair dismissal and breach of contract to be well founded. It held that the respondents had failed to follow the statutory dismissal procedure which applied to this case. The tribunal further found that as no adequate investigation was carried out, it was not possible to say whether or not the claimant was guilty of gross misconduct. As a result, her breach of contract claim succeeded. The tribunal made an award of compensation with uplift of 30% in regard to the respondent’s failure to follow the statutory dismissal procedure Ms.Brown appealed against this decision against the 30% uplift. In the case of Associated Society of Locomotive Engineers and Firemen Vs S.Brady (Appeal No: UKEAT/0057/06/DA on 20th and 21st March 2006 at Employment Tribunal ) the ground for claim is unfair dismissal under the pretext of gross misconduct. The claimant S.Brady was an elected General Secretary of ASLEF and the employer was Associated Society of Locomotive Engineers and Firemen(ASLEF). Mr.Brady was selected to his office on 17th July 2003. Under the standing rules of the Union his selected term of office was five years which was mentioned in his employment of contract. However, he was dismissed for gross misconduct with effective from 25th November 2004. Mr.Brady was complaining that he was unfairly dismissed on falsely framed chargers of misconduct and because of inter-rivalry and politics among the union members. On the other hand, the employer (Union) stated that the claimant was dismissed because of gross misconduct. On enquiry it was found that Mr.Brady (claimant) and the president of the union had difference of opinion and personal conflict on various occasions. On a particular day of May 2004, in front of Mr.Brady, the union president behaved in an uncivilized manner, acted violently and physically harmed a female staff member. Mr.Brady became involved in the issue which ensued in a fight. Following this the members of the union and Executive Committee members formed a syndicate and acted against Mr.Brady. The Executive Committee of the union conducted disciplinary proceedings and framed chargers against Mr.Brady saying that it was a gross misconduct of Mr.Brady being involved in fight with union president, speaking to the media about the fight, and bringing disrepute to the union because of this action. On the subsequent hearings the Executive Committee framed further additional charges on Mr.Brady about the conduct union affairs and financial dealings related with the management of the union. Finally, the Executive Committee took the decision on the expected lines that Mr.Brady be dismissed. The claimant filled the claim for unfair dismissal with the Employment Tribunal. On examining the case The Tribunal found that the real reason for dismissal was not gross misconduct. The EC of the union had decided to dismiss the claimant because he had been elected and appointed as General Secretary against their opposition to him. And as a syndicate the EC of the union prevented smooth functioning of office. Other than the fight Mr.Brady had with the union president he was falsely implicated in more different chargers. The ET concluded that dismissal was unfair. On appeal by the employer the EAT also held the view that the Tribunal’s ruling was correct and employee was not dismissed on fair ground and the dismissal was unfair. Conclusion All these cases explain the statutes behind the Unfair Dismissal Acts 1997 to 2007. In all these cases either the employer had agreed the employment of the worker or the employee had proved that he/she was employed in the company, without which the cases would not have become maintainable. So according to law, any worker who intend to sue their employer for unfair dismissal must firstly prove that he or she is an employer of the company. References CitizensAdvice,2010.Employment:Redundancy an introduction. , [online], Available from: http://www.adviceguide.org.uk/index/your_money/employment/redundancy_an_introduction.htm [Accessed 22 july 2011] Citizens Information Board, 2010. Employment: Unemployment and redundancy, [online], Available from: http://www.citizensinformation.ie/en/employment/unemployment_and_redundancy/dismissal/ [Accessed 22 july 2011] Nick Jew, 04 August 2010, Case Law: Case of the week: Brown v Baxter and another t/a Careham Hall, [online], Available from: http://www.personneltoday.com/articles/2010/08/04/56367/case-of-the-week-brown-v-baxter-and-another-ta-careham-hall.html, [Accessed 22 july 2011] Nick Jew, 04 August 2010, Case Law: Case of the week: Fulcrum Pharma (Europe) Ltd v Bonassera and another, [online], Available from: http://www.personneltoday.com/articles/2010/11/18/56949/case-of-the-week-fulcrum-pharma-europe-ltd-v-bonassera-and.html, [Accessed 22 july 2011] Read More