Employment Law for Animal Care - Essay Example

Employment Law for Animal Care & Service Workers Yve L. This research dwells on the rights of animal care and service workers and the pertinent laws relevant in their work environment. Yvonne Marie Leyson Professor Doe Employment Law 27 April 2006 Employment law for Animal Care-givers Our society in its clamor for freedom created an awareness and recognition of equal opportunity among employees in the workplace. It is a worker's performance that gets a job done, his cultural, religious or gender background has nothing to do with his quality of work. In fact, the sense of acceptance in the workplace allows an employee the chance to grow mentally and emotionally. Employees are therefore afforded equal opportunities across the nation regardless of affiliation. We share different cultures and beliefs inherited from our forefathers. It is one's sovereign right to gain entry to a job of choice that he has been prepared for. The Anti-Discrimination law allows every man to share equal rights in the workplace by citing potential discriminatory acts committed by employers that are definitely punishable. In the case of animal care keepers and service workers in zoos, more specifically their jobs entail the preparation of the respective diets of animals, cleaning the enclosures or cages, raise their young, monitor eating patterns, physical ailments and ensure the safety of the visiting public. Keepers also serve as guides and ensure the safety of the visiting public. Depending on the zoo keepers they may be assigned to work on a broad group of animals or may work on a limited collection. Animal trainers are also hired to train animals for riding; performance and entertainment; and the process sometimes take months and even years of repetition. Employers would often see that a job that requires broad responsibilities would entail a man's hand to do the work. The advent of sex discrimination legislation in the United Kingdom and the European region in general saw significant cultural changes across the workplace. When the European Convention on Human Rights recognized individuals other than the traditional gender classification of male and female a ground breaking law was established. Under the Sex Discrimination Act (1975)1 and the Employment Equality Regulations (2003)2, the limitation of a woman's right to practice her knowledge and skills by virtue of sexual classification as the weaker sex is prohibited. To discriminate a person by virtue of her sex is tantamount to an insult on her person. It is a woman's civil right to choose a career of her own and to earn for herself and her family just like any man. With the advent of this law, we can now see a lot of women allowed to excel in their chosen fields. We share different cultures and beliefs inherited from our forefathers. It is one's sovereign right to gain entry to a job of choice that he has been prepared for. Race Relations Act (RRA1976)3 allows every man to share equal rights in the workplace by prohibiting racial discrimination of workers. Gone are the days when colored workers are separated from the whites. Asians and Mexicans are no longer restricted to work anywhere they like. Everyone is given the opportunity to exercise one's profession or training despite his racial origin. This act creates inter-dependence among men of different cultural backgrounds to share their expertise in the workplace thereby affording the country a stable economic stature. Discrimination also materializes as well during the recruitment and selection process by denying or subjecting a person to a detriment or loss of opportunity similarly in the case of Chanya, a Kenyan woman whose application as a zookeeper at the Middlesex Zoo was turned down despite excellent training and qualification most likely owing to her gender and race. It should be noted that under the employment-related purposes, the Sexual Discrimination Act has been changed by the Sexual Discrimination Act (Burden of Proof) Regulations 2001(SI 2001 No. 2660)4. As the name implies, it is for Chanya as the claimant to prove the balance of probabilities based on facts. As a rule, Chanya needs to prove that there is no adequate reason for denying employment to her other than sexual or racial discrimination. Most likely this complaint would be labeled under an indirect discrimination where a 'requirement or condition' may be used as an argument by the employer or employ the possible reasons that it was not an intention but merely based on the assumption that "he or she would not have fitted in". A definitive determination of such facts should be drawn out that would lead to the conclusion that there was in fact an act of unlawful discrimination committed. Where Chanya can prove her facts from which conclusions can be drawn that she was indeed treated less favourably, the burden of proof moves to the respondent-employer. The Employment Tribunal (ET) will then examine the explanations for failure to deal with the code of practice. The hearsay explanation as an admission by agents5 of someone who used to worked at the zoo may not be an admissible evidence on the basis of 'an axe to grind' reasons imputed by the agent unless corroborated by several others. In Igen Ltd. v Wong6, racial discrimination can be a mortal ground of offense when the CA dismissed the appeals of Igen Ltd, et al on the basis of Ms. Slade's description of facts as supplied by the ET7.In reference to the Barton Guidance8 the court found that "the conclusion that the respondents have not adequately explained the totality of their actions and have not therefore proved on the balance of probabilities that the treatment was in no sense whatsoever on the grounds of the applicant's race"9 giving us an idea that Chanya would be better off to question her displacement on the grounds of racial discrimination. Twenty years ago, employee counseling was unheard of in the UK, however due to the harmful effects of redundancy, employers have identified a means of exploring, understanding mechanisms that are quite useful professionally and personally in the private lives of employees. Personal problems can't be expected to be always left outside the workplace considering the amount of time an employee spends on his waking hours. Early recognition and intervention can be employed to minimize the problem before it affects the rest of the staff that later on becomes a disciplinary issue or sickness. Stress and burn-out syndromes are now recognized as a cause for concern. The Occupational Safety and Health Act 1974 in 1986 provide as a basic health benefit a regulatory framework that "allows the provision for securing the health, safety and welfare of persons at work; to protect others against risks to health or safety in connection with the activities of persons at work; to control the keeping and use and prevent the unlawful acquisition, possession and use of dangerous substances and for certain other purposes"10. Under this Act, employers are mandated as reasonably practicable to implement and maintain the health, safety and welfare at work of all his employees. A safe system of work should be provided make arrangements for ensuring safety and the absence of health risks in the workplace with a particular task assigned to the employee. Adequate facilities should also be one benefit provided for under this law for the welfare or workers. At the same time, employees while at work are expected to take reasonable care for his own health and others who might be affected by his acts. Under this act, he is enjoined and duty-bound to cooperate with any person or his employer to enable that such specific duty must be complied. The Health Services Executive Division actually oversees the proper implementation of programs and all aspects of Occupational Health11. The Medical Division consisting of a field office and staff initiates the policy initiatives to provide expert advice at workplaces. Supervision of workers in jobs where there is a potential hazard is particularly noted to evaluate risks in all areas of the industry and the presence of dangerous pathogens. Andrew, as an experienced and skilled keeper who has been with the zoo for a number of years is suffering depression. Due to these depressive moods, his job performance was affected and as a result his poor handling of the seals agitated them which terrified a child spectator. His manager subjected him to counseling and unless he is fit for work, in 4 weeks he will be dismissed following most likely the evaluation of counselors. Let it be addressed that in fair dismissals, an employee is subjected to investigations for any potential disciplinary action. A written directive should be issued to inform the employee on the discussion rather than ambush him to elicit an honest response. In cases of discipline after proper incidents are raised, the employee is entitled to have a representative along. If unavailable, he must be given enough time to consult the representative. The employee also is allowed to put forward his case however other issues are dismissed. Decisions after the hearing should be recorded; verbal warnings included. Appeals can be made as an employee's right otherwise the decision is deemed unfair. Several measures to improve the protection and welfare of animals are drawn under the Zoo Licensing Act 1981, licence may either be granted or refused or revoked upon the violation of certain rules that are applied to protect animals under the Animal Welfare Bill12. The Animal Welfare Act 200513 and in Magistrates' Courts Act 1980, protection of animals and violations are implemented by the local authorities and decided upon by the magistrate court. Animal Handlers are therefore responsible to enforce animal protection including the need to be able to exhibit normal behavior patterns. An Action Plan which was recently approved last April 21 was called by the European Council14 aims to improve legislation on animal welfare. The EU action plan is a step towards putting in proposals on animal protection for sufficient action on areas where it is lacking. Therefore Andrew must make sure that he is psychologically able to tackle and perform his duties as an animal handler rather than risk the penalty of law which could entirely affect his other co-workers who would suffer unemployment should the local authorities decide to implement penalties under these laws. The zoo will still err in judgment should it enforce Andrew's dismissal after the 4 week period to meet their demands for counseling as it is a violation of laws to end the procedure and terminate and employee should it fail to meet the own statutory schedule rendered by the company or the zoo. They would still be liable to face the wheels of justice and compensate an unjust act. Under the Disability Discrimination Act15, once Andrew succumbs to a diagnosed mental depression, prohibition of constructive dismissal is mandated. Barbara, who was good at her job in the fundraising and sponsorship department, has upset one of the zoo's major corporate sponsors by referring to one of its representatives as, "having less intelligence than many of our smaller animals". As a result, Barbara was dismissed following orders of the sponsor without notice or pay. The zoo greatly erred in their decision to dismiss Barbara without notice and pay in favor of its major corporate sponsor. This is a clear-cut infringement of an employee's rights and is therefore punishable. As a creature of statute law, unfair dismissal may commonly occur even when there is no breach or contract. Barbara may have erred in openly admonishing a representative of the major corporate sponsor and her employer has the right at common law to terminate her contract but with proper notice! The failure to give a proper notice is in fact a 'wrongful dismissal' for which she can sue for damages. In Johnson v Unisys Ltd16, "damages for distress, humiliation and damage to reputation or to family life could be awarded in compensation for unfair dismissal". Her employer may claim that Barbara's conduct has left them no choice but to terminate her-as a constructive dismissal17. Under constructive dismissal, the employer must attest to the presence of the 3 elements18 which is not provable in her case. A summary dismissal is still perfectly possible under an exhaustive and illustrative list, even with our draconian laws but is highly reserved for gross misconduct. In cases of gross misconduct, the best yardstick is whether the conduct has fatally undermined the relationship of trust and confidence between the employer and employee which was neither properly presented in Barbara's case. Granted that it is presented, with the employment of verbal abuse likely to provoke a breach of good relations between the organization and its external organizations, the decision shall be confirmed to the employee in writing together with the appeals procedure. Still, Barbara can seek reparations and excuse to thus claim by allowing the employer to prove that such verbal abuse was in fact offensive whereby the major corporate sponsor will be called to shed light in the case. Otherwise, a proper proceeding is afforded to the employee who was likewise summarized above in Andrew's case during which under the investigation of the alleged disciplinary offense; the organization may suspend Barbara on full pay until such investigation is complete. Appeals against a disciplinary action must be made in writing within 7 days of the action. A full review of the facts shall be carried out during which the employee has the right to appeal within 7 days19 of the appeal during which the employee remains dismissed until the procedure is completed. Most companies impose standards of dress and appearance as a means of promoting the corporate image, for hygiene and safety. Some employees find these standards as unnecessarily restrictive and outdated given the changing perceptions of dress and style. Employers are given a wide freedom to control and implement their business image, including the appearance of their staff especially when their duties allow them contact with the public. Such discretion is not limited as a balance has to be decided between the employer's business interests and the reasonable freedom of the employee. They may be exceeding the limits of their discretion if they insist on employees adhering to a dress code. Dismissals for refusing to comply with appearance rules can result in unfair dismissal claims and some rules may give rise to allegations of sex or race discrimination. In the contracts of employment, express terms relative to clothing and appearance is often implied into the contract that an employee must dress in a manner that is suitable and appropriate to the employer's business. It is also an implied obligation for an employee to obey the employer's lawful and reasonable orders which includes appearance. Dismissal may occur where an employee is in breach of an express or implied rule in clothing and appearance. Alternatively, the employee can resign in response to a fundamental breach of contract by the employer and claim constructive dismissal. In the context of clothing and appearance, this may occur when an employer imposes a new rule to which the employee objects. Where an employee claims unfair dismissal, the employer will normally seek to establish that the reason for dismissal related to conduct under S.98(2)(b) ER Act, or 'some other substantial reason' under S.98(1)(b)20. The tribunal must then consider whether dismissal is a reasonable response open to the employer within terms. In deciding this issue, tribunals were advised in Boychuk v. H J Symons21 to take account the employer's reasons for the clothing or appearance requirement; whether it is part of the employment contract; reasons for objecting to the requirement. In Catharell v. Glyn Nuttall22 an electrician was unfairly dismissed for refusing to have his hair cut. The tribunal said that "as long as his hair length was not detrimental to the respondents' business or his performance of his duties, [he] was entitled to determine for himself the personal question of how long he should wear his hair". Employers must therefore put forward a convincing reason for imposing any requirement and Ethan as a Rastafarian may not cut off his dreadlocks since such appearance in a zoo cannot necessarily prove detrimental to the business and his actual duties. The Employment Tribunals often stressed that a subjective approach on appearance based on an employees own taste and preference is not a reason for dismissal. In Higham v International Stores23 on the other hand, the employers were justified in dismissing H for wearing sandals, no socks and no tie to work as his dress in a middle-class store was likely to alienate customers and in Eales v Halfords24, the tribunal thought that the employers had over-estimated the degree of smartness required to serve in a bicycle shop in Mansfield when they insisted that Eales wore sensible dark shoes, dark trousers of a conservative cut, collar and tie. The tribunal said that it was 'a matter of common sense' to wear what is appropriate at any place of work subject of course to exceptions. Employees can naturally offend customers if they come into contact with them. Dismissal for sporting a 'bizarre' haircut and wearing make-up on the grounds that customers would be offended will not justified if one spent most of his time working out of the public eye in a dark room such as camera technicians. Service or retail industries are likely to implement where uniforms are reasonably necessary. Even if dress rules have a justifiable basis, employers must consider any legitimate objections to them that their employees may have. Daniel who is Jewish cannot be prevented from wearing his 'yarmuka' or skull-cap for so doing, the employer will likely segregate and disadvantage his racial and religious practices and the legal implications of the Anti-discrimination Act specifically prohibits constructive dismissal. If an employee's appearance is causing concern, the employer's first step is to point out to the employee any breach of rules relating to appearance and give the employee the opportunity to explain his or her reason for non- compliance. An employee who continues to refuse to conform to rules should then be given an explicit warning and adequate opportunity to comply before any further action is taken. The employer at the same time has a defence to an indirect discrimination if he can show that such requirement is justifiable on non-racial grounds. In Hampson v Department of Education25 the Court of Appeals stated "that there must be an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition"26. Tribunals in effect will distinguish between rules which are necessary and those which are merely convenient and consider whether the same objective could have been achieved in a non-discriminatory way. The advisory on health and avian influenza or bird flu and Newcastle disease27 was aimed specifically at those people whose occupation involves working with poultry that may be affected with avian influenza or Newcastle disease, this note covers respiratory hazards, routes of infection, risk and risk factors, and prevention and control measures. Private veterinary surgeons and veterinary inspectors are those whose occupation may put them at risk if an infectious agent is present. Carl, who works with the wild bird collection, was extremely concerned when one swan which recently flew into the zoo unexpectedly died. Suspecting that it could be Avian Flu, he sought his manager and suggested tests to be carried out to rule out the dreaded disease. The manager has warned him that if he or anyone else will raise the matter again, he will face a disciplinary action and possible dismissal. Such irresponsible action on the part of the line manager requires discipline from the health authorities. Avian influenza28 is a highly infectious notifiable disease affecting many species of birds, including commercial, wild and pet birds. Currently it is on the rise among Asian countries and was thought to infect birds only until it jumped the species barrier for the first time in Hong Kong in 1997. It has been known for some time that a wide range of influenza viruses circulate in wild birds. Subtypes of the influenza A virus known as (H5N1)29 and (H9N2) have been known to infect humans. And in April last year a Dutch veterinarian who had been working on a farm infected with bird flu became ill with a strain (H7) of the disease and died of pneumonia. But the WHO has warned that avian flu does have the potential to be more serious than the Sars virus which emerged in 2003, if it mutates into a more lethal form or a form which can pass from human to human. Public health officials are increasingly recognizing the risks of infectious disease, human injury, and allergic reaction associated with animals in public settings. In the past decade, outbreaks of zoonotic diseases have occurred at animal exhibits. Outbreaks include Escherichia coli30 among schoolchildren following visits to farms and petting zoos, salmonellosis31 in children who attended a reptile exhibit, Mycobacterium tuberculosis32 in zoo elephant handlers, and ringworm in persons showing lambs. The risk of zoonotic disease increases when large numbers of persons come into contact with animals. Venues of concern include petting zoos, zoological institutions, nature parks, circuses, farm tours, livestock birthing exhibits, county or state fairs, schools, and wildlife photo opportunities and other public settings have necessitated large numbers of exposure investigations. In addition to the human health burden, such outbreaks consume significant public health resources. Before 1990, there were few reported disease outbreaks related with animal contact. Recently, the number of outbreaks is on the rise particularly among zoo and farm visitors. The primary mode of transmission is oral-fecal route and transmission to humans occurs when animals are touched or petted. Infected animals shed the pathogen intermittently thus it is necessary to protect animal and human health. For these reasons, all animals including livestock, pets, and wildlife should be considered as potential shedders of enteric pathogens. Animals in zoos and exhibits may be more likely to shed pathogens because of stress induced by prolonged transportation, confinement, crowding, and increased contact with people. Commingling of animals also increases the probability that an animal shedding organism will infect other animals. In the USA twelve circus elephant handlers at an exotic animal farm in Illinois were found to be infected with Mycobacterium tuberculosis33 after three elephants died of M. tuberculosis disease. One handler had signs consistent with active tuberculosis. Although humans can be a source of infection for elephants, medical history and testing of the handlers indicated that the elephants had been a likely source of exposure for most of the human infections in this instance. Territorial public health departments in 2000 identified no state laws to control exposure of humans to enteric pathogens at venues where the public has access to farm animals. In accordance with the Animal Welfare Act34, Animal Care licenses implements and inspects certain animal exhibits for humane treatment of animals, but these regulations are not intended for human health protection. There are no federal laws to address the risk for transmission of pathogens at venues where the public has contact with animals, but guidelines to reduce the risk of enteric pathogens were issued under the act. Implementation will need to be tailored to the specific venue. Incidents of disease transmission or injury should be promptly reported to public health authorities and investigated. When possible, information should be provided before the animal contacts. For example, recommendations should be provided in information sent to fair exhibitors, those arranging school field trips and classroom exhibits, and persons receiving animal exhibition or education licenses. Staff at animal contact venues should be trained in reducing the risk of disease and injury associated with animals, and in measures to comply with local and state guidelines about reporting of animal bites, scratches, or other injuries resulting from animal contact. In certain types of venues, for example, petting zoos, public contact with animals will be encouraged. In these settings, extra precautions should be taken to reduce the risk of injuries and disease transmission. Carl, therefore cannot be dismissed on the grounds of divulging relevant information. In fact the company and the manager can be penalized for trying to hide substantial information from the proper authorities who are properly trained to detect such outbreaks considering wildlife migratory birds. Even if Carl misread the information he had selflessly gathered, the company should thereby provide Carl with adequate information in Game-keeping and Wildlife Management for him to be an asset to the company. Summary Harassment in the workplace may occur on several grounds. In the Middlesex Zoo, there is apparent evidence that the company is into harassment acts to gain control over their employees. In Andrew's case depression may be substantial and long term to fall under a certain disability type of mental impairment. The DDA makes it unlawful to treat a person less favourably on the grounds of his disability. If an employer fails to make a reasonable adjustment for him, this will constitute a discrimination.Where this occurs, it may be appropriate to run a disability discrimination claim alongside the corporate bullying or harassment on the grounds of age, if sufficiently severe, may constitute grounds for constructive unfair dismissal. It will usually be more difficult for an employer to justify less favourable treatment or failure to make reasonable adjustments where the disability has been caused by the working environment. In Chanya's case, she may claim sexual harassment of black women which can amount to a combined race and sex discrimination and Daniel can likewise file a claim for racial discrimination and a probable unfair dismissal with Carl. As an adjunct, both Carl and Daniel can seek refuge with the Employment Equality Act on Religion and Belief Regulations 2003. Barbara, may have trouble with her verbal counter but in her dismissal she was not afforded the chance to explain her side and through this she was not the equal opportunity to explain her side due to her being poor. Under the equal opportunity act, she can still seek reparations for the damage cause to her. On some occasions, despite media attention, certain discriminatory practices are still observed. It is sometimes not clear which form or forms of discrimination are involved. But in making the applicant's claim, a balance has to be struck between pleading all potential claims and ensuring that the employment tribunal's mind is concentrated on the claim that has the strongest evidence. Continuing segregations and disadvantages are often noted in smattering despite the laws that prohibit them and the legal implications the specific laws carry. We can not expect that to change overnight. If others had worked on it for years, we are now enjoying the fruits of their toil to escape from the confines of an oppressive workplace. However if we wish for the recognition of our rights as a person or a group in the workplace, we should take several measures to identify our rights and bring this to an employer's attention. Reported acts of harassment are prosecuted and sometimes not due to an employee being subjected to ridicule and the trauma that is attached to facing a full-blown case. As employees, our job is to see to it that cases like this do not and will not ever happen to us. Certain laws that are made available for everybody must be educationally exploited to enjoin everyone on the awareness. The rights of a person despite his racial, sexual or religious affiliation recognize his needs for identification and the proper observance of her skills and talents that is a total gift to the community. Laws are made for everybody as a guide to how we might behave accordingly in the workplace. Works Cited Anti-Discrimination Law (AD Law), Fact Sheet 6. Collins, H., et al. 2001. Labour Law: Cases and Materials. CJA, Sec.35 Hearsay Evidence. Igen Ltd v. Wong [2005],EWCA Civ 142. Occupational Health: The Health and Safety at Work Act 1974 p1. Animal Welfare Act., Schedule 3-minor and consequential Amendments. East Midlands Euro MP welcomes EU Animal Welfare Action Plan. http://www.paulholmes.org.uk/europe.html 27 April 2006. Johnson v Unisys Ltd[2004],IRLR 727. Employment Act, 2002. Becta. June 2003. Disciplinary Procedure Version 1. http://www.becta.org.uk 26 April, 2006. IDS Brief 641 Boychuk v H J Symons Holdings Ltd (1977 IRLR 395) Catharell v. Glyn Nuttall Ltd.(ET Case No. 7935/81). Higham v International Stores (COET 589/50) Eales v Halfords Ltd (ET Case No. 25468/80) Hampson v Department of Education and Science (1989 IRLR 69) UK Department for Environment, Food & Rural Affairs(Defra)in 2003. Defra. April 27,2006. Avian Influenza. http://www.defra.gov.uk/animalh/diseases/notifiable/disease/ai/ 27, April 2006. BBC News. Jan 14, 2004.Avian Flu. http://news.bbc.co.uk/1/hi/health/medical_notes/1337640.stm Shukla, R., Slack, R., George, A., et al. Escherichia coli O157 infection associated with a farm visitor Centre.Communicable Disease Report CDR Rev 1995;5:R86-90. Friedman CR, Torigian C, Shillam PJ, et al.1998. An outbreak of Salmonellosis among children attending a reptile exhibit at a zoo. J Pediatr 132:802-7. The National Tuberculosis Working Group For Zoo & Wildlife Species. Guidelines For The Control Of Tuberculosis In Elephants,2003. http://cofcs66.aphis.usda.gov/ac/TBGuidelines2003.html 27 April, 2006. Read More