British Employment Law - Essay Example

? Case Studies on British Employment Law Scenario An employer under English employment law is to offer a concise warning of the type of demeanour that he regards to be gross misconduct. Details of such gross misconduct can be given in the contract of employment or through the staff handbook. Recognising such a demeanour in advance will assist to show later that the management consider it as an important behaviour. In Brito –Bebapulle v Ealing Hospital NHS Trust 1case, the Employee worked as a haematologist consultant whose employment contract permitted her to undertake private clinical practice also apart from her NHS work. While she was on sick leave, it was alleged by the defendant that she continued to give her consultation to private patients. She was summarily dismissed for her gross misconduct for having received sick leave pay and also attended private patients. Aggrieved by this, she appealed to EAT claiming that the no due consideration was given by the NHS to any mitigating elements like any past untarnished records, employee’s long service or outcome of any dismissal. In this case, the tribunal was of the opinion that once gross misconduct had been demonstrated, dismissal must always within the ambit of adequate responses. However, the plaintiff appealed to EAT against tribunal findings on the ground that the employment tribunal should not have gone to a straight conclusion that dismissal is the punishment for the gross misconduct as it failed to give weight to any mitigating elements like past clear track record, length of employment and outcomes of any dismissal from the NHS. EAT concurred with her view that summary dismissal for a gross misconduct will be held void if no consideration has been given to other mitigating elements like employees past track record, length of service and the outcome of any dismissal. (Morris 2013). Decision to dismiss If an employer initiates the decision to dismiss the employee immediately for gross misconduct, they have to stick to that decision and be able to establish it. Since, there is no concrete elucidation of what is gross misconduct, it refers to the decision of the employer to find as it has happened but that verdict would be reviewable by the Employment Tribunal. The meaning of Fair Dismissal This refers to procedural formalities and needs evaluation of the conduct contended. It should be demonstrated that the incident was examined, and satisfactory evidence was available for the misconduct and for the employee to be informed and to have a chance to challenge any accusation in a typical disciplinary process. In such cases, the conduct alleged had already been set out in the training book or employment contract; it would be advantageous for the employee to prove it to be a gross misconduct. Further, an appeal process should be established, and the employee should be given an opportunity to avail such an appeal process. (Fenwick & Kerrigan 2011:221) The meaning of the Reasonable The gravity and the nature of the offending demeanour will be seen at here. The tribunal will inquire whether the demeanour was so bad as to annihilate the association between the employee and the employer or did it just create irritation. If the demeanour of the employee was not significant like not attending the office at the right time, habitual absenteeism, the tribunal may view it as irrational for the employer to jump for the immediate dismissal without contemplating other actions or sanctions. (Fenwick & Kerrigan 2011:221) In BHS v Burchell, it was held that employer has to corroborate a rational faith in the guilt of the employee well before dismissing him, particularly in case of the alleged theft. However, John can suspend Smith and Freeman while they are under investigation. Both Smith and Freeman have to be questioned individually from each other. (Holland 2013:385) In Monie v Coral Racing Limited, there was disappearance of cash from the safe custody of the employer. The defendant could not decide which of the two employees who was responsible for the safekeeping of the cash was accountable for the cash disappeared and hence, both the employees were dismissed by the defendant. In this case, the dismissal was held to be reasonable and that where an employer is brazened out by major ineffectiveness but is unable to decide which of two or more employee is negligent or accountable. An employer can dismiss all those under suspicion under such a situation. Thus, dismissal in these cases would be for “some other major reason” instead of conduct. Therefore, it is probable, even in case, if the employer is not able to recognise a true offender even after an investigation, an employer is still having authority to dismiss all of the probable guilty employees fairly. In such scenarios, it is not essential to have an adequate belief in the culpability of each employee. (Holland 2013:268) Where an employee has indulged in a theft in the outside of his work place ,an employer may treat the same more gravely where an employee is performing a job of handling stock or money independently without any supervision. In Moore v C&A Modes, an employee who was a section leader was discharged from her job after being found engaged in shoplifting in another shop, despite the fact that she had two decades experience with the employer and was also a trusted member of the staff of the employer. (Rush & Ottley 2006:312). Though, the formal disciplinary procedure and a formal grievance procedure are in place, but, both of which appear to have been copied from an out-dated government website without modification. Further, John has not followed statutory disciplinary proceedings while dismissing Shelly Smith and Terry Freeman. Further, John failed to take note that Terry’s predecessor had an additional key before he was dismissed nine months earlier. He has not inquired with Terry about the theft of the computer or made a police complaint against Terry in this regard. As per decision held in Monie v Coral Racing Limited, John has the power to dismiss them as John is not able to recognise a true offender even after an investigation, and hence John is still having authority to dismiss all of the probable guilty employees. However , John has to give due consideration to the decision held in Brito –Bebapulle v Ealing Hospital NHS Trust that the summary dismissal for a gross misconduct will be held void if no consideration has been given to other mitigating elements like employees past track record, length of service and the outcome of any dismissal. Under s.94 of the Employment Rights Act ,1996 , Shelly Smith has the privilege not to be unfairly dismissed from the employment as he has several years of employment and has unblemished record and good appraisal. The Employment Rights Act 1996 (ERA) offer for a general privilege to employees’ not to be unfairly dismissed. Section 98 ERA states that an employee who believes that they have been dismissed unjustly can, if rightfully competent, can lodge a protest about the unfair dismissal to an employment tribunal which will decide whether the employer’s action is reasonable in the background in taking the decision to dismiss. Any accusations of theft will come under the probable fair reason of demeanour. In charges of theft, an employer has to establish that there was a probable fair reason for dismissal. Under an allegation of theft by an employee, an employer has to establish that the dismissal decision is procedurally fair as a fair procedure has been followed in dismissing an employee on the ground of theft. Further, an employer has to establish that dismissal of an employee was substantively fair and the decision to dismiss an employee was a rational or not in the background scenario of the case. (Hardy 2011:92). In this case, both Shelly Smith and Terry Freeman have an untarnished record in the past, and they never have been charged with a theft before. Both of them can defend that allegation of theft has tarnished confidence and mutual trust between them and the management. It seems that the sales director, John Kelsey’s action to dismiss both Shelly Smith and Terry Freeman on the ground of theft charges, John Kelsey should have carried over a just and an unprejudiced investigation of the case and also to conduct a disciplinary hearing and having made a just, unprejudiced and an authentic decision that the above may be of guilty of the charges of the theft. In this case, John engaged in the summary dismissal of Smith and Freeman on the ground that they were engaged in a gross misconduct. A gross misconduct on the part of an employee is so grave that it destabilises the employee/ employer relationships and warrants an immediate dismissal without any pay in lieu of notice or without notice. In this case, Smith and Freeman should immediately initiate following actions due to the allegation of theft. They should make a written appeal to their employer (John) as regards to summary dismissal. If necessary, Smith and Freeman should submit a grievance to John. Smith and Freeman can speak to trade union if it is there. It is advisable to consult some specialist employment solicitor to take his guidance. Smith can make a claim to the employment tribunal for unjustified dismissal. As Terry Freeman has worked in a similar position at the same site for eight months, and Shelly has an unblemished record and good appraisal reports but Terry has yet to have his first-year appraisal report, it is advised that Terry Freeman can approach the local court for getting an injunction or stay against his unfair dismiss Scenario 2 Under the Disability Discrimination Act of 1995 (DDA), it will be considered against the law if an individual employer or prospective employer has shown a discrimination against an employee simply because of his/her disability. The term disability includes mental or physical harm which has the long-run or major negative effect on an individual’s capability to carryout normal day-to-day functions. Thus, mental or physical impairment includes hidden impairment like mental health disorders, mental illness, dyslexia, learning disabilities, epilepsy and diabetes. (Brading & Curtis 2000:11) The various types of discrimination by the employer which are considered as illegal under DDA are as follows: On the grounds of disability, any direct discrimination is being shown to a disabled employee Due to their disability, treating an employee or an applicant for employment less favourably or not able to demonstrate that this treatment is reasonable. Not considering any necessary reasonable fine-tuning. Harassing such a disabled employee due to his disability Victimising such an employee as he has initiated action or given corroboration or information concerning with trial proceedings under the DDA. An Employer has to give consideration for reasonable adjustments with the disabled employees (Brading & Curtis 2000:26) DDA explains that employer has to make rational fine-tunings (adjustments) to help disabled employees to work and to stop employees with a disability from being put to a disadvantage. Discrimination is said to have occurred when an employer fails to make rational adjustments with disabled employees. Nonetheless, an employer may be able to dispute that an adjustment is not a rational one to make in a specific scenario. (Brading & Curtis 2000:134) Some of the reasonable adjustment by an employer is illustrated as below: Offering an equipment Offering flexible working hours or job sharing like completing the job earlier or starting earlier. To change the nature of the duty Offering retraining or offer redeployment Offering information through Braille facilities for blind employees Permitting time off like evaluation ,treatment or rehabilitation Offering special toilets for disabled employees , offering ramps or reserved parking space An employer may ask for evidence like medical certificate from the disabled employee so as to vouch his disability claim. (Brading & Curtis 2000:134) Gaynor Meikle’s Case Aged about 57, Gaynor Meikle is a teacher with more than three decades experience. She contended in the Court of Appeal that her employer Nottinghamshire County Council discriminated in the job due to her loss of sight. It was held by the Court of Appeal that she was constructively ousted from the service, and she was entitled to receive the full pay instead of sick leave pay. Meikle case can be hailed as landmark precedent that the constructive dismissal falls under the DDA. Constructive dismissal happens when an employer is directly accountable for conducting in a style that makes an employee to resign as what Meikle did in this case. Meikle case also stressed the employers should pay sick pay as they are under obligation to make rational changes and see that it is not covered or fall under the exemptions to the DDA where some payments for injury ,accident , invalidity or sickness are exempted under DDA. (Out-law.com 2004). Susan Archibald’s case: In Susan Archibald’s case, House of Lords held that there is an obligation on the employers to make rational changes for disabled employees if they were unable to perform the job due to their physical disability. The duty of the employer in such situations includes contemplating to transfer such a disabled employee to another position that is vacant or can post her even in higher grade if there is a vacancy. Archibald aged 38 was employed as a road sweeper in Fife Council and due to aftermath in a surgery, she was unable to walk. As per council’s redeployment policy, she undertook competitive interviews for more 100 positions but was unsuccessful. Finally, she was dismissed on March 2001 by the council. Meanwhile, Archibald joined as a supervisor in a local community centre. This demonstrated that Archibald was capable of performing the job and had the Fife council offered her analogues position, she would not have deprived off a large pay over a substantial period of time. Archibald complained with the employment tribunal that she had been discriminated on the grounds of her disability as her employer failed to adhere with an obligation to make a rational change under the DDA. The employment tribunal held in favour of the council. On appeal to The Employment Appeal Tribunal (EAT) and in the Court of Session were also failed. The House of Lords in the appeal overturned the decisions of the EAT, and Court of Sessions and case has been now referred back to the employment tribunal again. In this case, House of Lords observed that Council of Fife is having a duty to consider to transfer Archibald in any of the 100 posts that she applied for and also criticised the findings of the employment tribunal’s view that it was resulted in a more constructive treatment and asked the Employment Tribunal to have re-look at the case justly. (Out-law.com 2004). Under Equality Act 2010, an employer must not treat a disabled individual unfavourably due to his disability where the employer cannot demonstrate that what he is doing is objectively reasonable. This is called as discrimination emanating from disability. This is applicable when an employer is aware or could reasonably be anticipated to aware that the employee is a disabled person. Royal Bank of Scotland v Ashton Due to frequent migraines, Miss Ashton did not turn up for work very frequently. Royal Bank of Scotland offered several concessions to her, including convinient time of work, also she reached maximum points that disciplinary actions had to be taken under RBS sickness policy, and bank stopped issuing sick pay to her during her absence. Finally, RBS issued a disciplinary warning to her and withheld one year of her sick pay. Miss Ashton claimed that action resulted in the employer’s failure to make rational changes and discrimination under DDA. EAT turned down her claims. As RBS had given her many chances by relaxing its sickness absence policy and hence, RBS had not failed to make rational changes. (Lindsays.co.uk 2012). Tameside Hospital v Mylott As Mylott had mental health issues and hence, it was acknowledged that he had health issues under DDA. Hospital administration after failure of numerous meeting with Mylott dismissed him on the ground that he was unable to notify the exact date of his rejoining his duty. However, the tribunal was of the opinion that his dismissal was unfair and observed that s.4A of the DDA, 1995 did not result in an obligation on the employer to facilitate an application for retirement due to ill-health and hence, this would not be a rational change anticipated to be planned by the employer as regards to a disabled employee. This case law demonstrates that the obligation to make a rational change does not applicable to facilitate a disabled employee to retire from the employment on positive conditions. This case also signifies that there is no obligation imposed on an employee of a disabled employee to initiate an application for ill-health untimely retirement. (Lindsays.co.uk 2012). Steven has to make a reasonable adjustment by acceding the request of Paul by changing the nature of his duty by transferring him to either to the accounts department or to some other office jobs. Steven cannot commence any disciplinary action against Paul due to his slowness in work as that would amount to discrimination under DDA. . Steven cannot discriminate Paul on the grounds of his disability. Steven cannot refuse Paul statutory 4 weeks leave permitted along with one week leave granted to the draftsman as this would also amount discrimination. If Steven refuses the sick pay to Paul, Paul is entitled to demand the same by citing the Gaynor Meikle’s Case. Further, it is the duty of Steven to be compassionate with Paul as held in Susan Archibald’s case where House of Lords held that there is an obligation on the employers’ to make rational changes for disabled employees if they were unable to perform the job due to their physical disability. Further, under Equality Act 2010, an employer must not treat a disabled individual unfavourably due to his disability where the employer cannot demonstrate that what he is doing is objectively reasonable. Thus, it is the duty of the Steven to find another alternative position in the company to Paul as per the decision held in Susan Archibald’s case, where House of Lords held that there is an obligation on the employers’ to make rational changes for disabled employees if they were unable to perform the job due to their physical disability. The duty of the employer in such situations includes contemplating to transfer such a disabled employee to another position that is vacant or can post Paul even in higher grade if there is a vacancy. List of References Brading & Curtis. (2000). Disability Discrimination: A Practical Guide to the New Law. London: Kogan Page Publishers. Fenwick, H & Kerrigan, K (2011). Civil Liberties & Human Rights. London: Taylor & Francis Hardy, S T. (2011). Labour Law in Great Britain. London: Kluwer Law International. Lindsays.co.uk. (2012). Employment Case Law [online] available from [accessed 14 December 2013] Morris, W. (2013) Gross Misconduct- Is Dismissal always Reasonable? [online] available from http://www.walkermorris.co.uk/gross-misconduct%E2%80%A6is-dismissal-always-reasonable-brito-babapulle-v-ealing-hospital-nhs-trust[accessed 14 December 2013] Out-law.com. (9 July 2004). Landmark Judgments for disabled workers. online] available from http://www.out-law.com/page-4701[accessed 14 December 2013] Rush, J & Ottley, M. (2006). Business Law. London: Cengage Learning Read More