Employment Law - Assignment Example

?Employment Law Scenario I The question is whether the two employees Janice Hall and Kelsey Fields have been unfairly and or wrongfully dismissed. An employee is deemed to have been wrongfully dismissed if there is no adequate notice by the employer as per their employment contract. Notwithstanding a breach of contract, unfair dismissals occur if they do not fall under one of the six fair reasons allowed by law. Besides, unfair dismissal occurs if the employer has not followed a fair procedure and has acted unreasonably in the dismissal of the employee. Under certain circumstances, employer must comply with the ACAS Code of Practice on Disciplinary and Grievance Procedure failing which the Employment Tribunal will find for the employee. The Tribunal has the discretion to increase the award by 25 % if the employer has not complied with the Code. Employees have the right to insist on reasons for dismissal in writing under section 92(1) of the Employment Rights Act 1996. (ERA) since a written statement can serve as evidence in any subsequent Tribunal proceedings. If the employer has not shown lawful reasons for dismissal, not followed the set procedure and not given sufficient notice, the employee can claim unfair or wrongful dismissal. Requirement of a notice depends on the terms of employment contract i.e whether the employment is for a fixed period or an indefinite period. If indefinite, the contract must have a provision for the period of notice by the employer or employee. In case of notice period mentioned in the contract, a reasonable notice is a must though the length of notice can vary according to circumstances and industry norms. However, an employer is required to give a statutory minimum period of notice i.e one week’s notice if the employee has worked continuously for one month or more but less than two years. If the period of service is two years or more but less than 12 years, one week’s notice is required for each year of continuous employment. If the employee has worked for 12 years or more, employee is entitled to minimum 12 weeks’ notice. This is regardless of any shorter period mentioned in a contract, though longer period than statutory period is allowed. A notice already issued cannot be withdrawn without a mutual consent. If there is no notice given by the employer, it will amount to wrongful dismissal entailing payment of damages equivalent to the wages and benefits for the stipulated period of notice. In case of a PILON (payment in lieu of notice) clause in the employment contract, it will not amount to breach of contract if the employer has given money to the employee in lieu of notice. However, if the employee has committed serious or gross misconduct, summary dismissal without notice with immediate effect is justified. The seriousness or gross nature of misconduct will depend upon the circumstances. Theft, fraud, physical violence, serious negligence or serious breaches of health and safety rules are instances of serious misconduct. Examples are usually illustrated in the disciplinary procedure prescribed by the employer. For claiming wrongful or unfair dismissal, an employee must have put in one year of continuous employment with the employer. The qualifying period of employment has been increased to two years from the date of 6 April 2012. This will not apply to those employees whose qualifying period commences before 6 April 2012. A fair dismissal exists in the following circumstances as mentioned in section 98 (1) of the ERA: Lack of skill or qualifications. 2. Misconduct by the employee. 3. Redundancy. 4. Retirement. 5 Breach of an Act in case of continued employment. 6. Any other reason of substantial nature. Even then, it is expected of an employer to follow a fair procedure to dismiss the employee as mentioned in section 94(4) of the ERA. Of these reasons, conduct on the part of the dismissed employees herein is of immediate relevance. In order to decide whether the employer has acted fairly in dealing with his employee’s misconduct, he should show that he has carried out a full investigation, informed the employee of allegations levelled against him/her well in advance of the disciplinary proceedings, showed the employee the evidence of misconduct, and should have allowed the employee opportunity to explain his/her case on the evidence. Besides, the dismissed employee should be given the right of appeal against dismissal. The employer must also have complied with the ACAS Code of Practice on Disciplinary and Grievance Procedures. This code is applicable to disciplinary situations concerning misconduct or poor performance. The code is not mandatory for other situations. A dismissed employee can bring in a claim before an Employment Tribunal within three months from the date of dismissal. Alternatively, both employer and employee can mutually agree to refer the dispute before ACAS-appointed arbitrator under the ACAS Arbitration Scheme which is meant for giving quicker, cheaper and an amicable solution. Under both the above, employees may avail the remedies of re-engagement or reinstatement though these are rarely met with. In most of the cases for unfair dismissal, compensation is awarded either as Basic Award or Compensatory Award. Basic Award involves calculation with reference to salary, age, length of service subject to a maximum award of ? 11,400 with effect from 1 February 2010. On the other hand a compensatory award involves reimbursement of actual losses suffered by the employee and at the discretion of the Tribunal subject to a maximum of ? 65,300 with effect from 1 February 2010. There are certain automatically unfair reasons for reasons for which minimum period of service for one year is not necessary. However, theft is one of such automatically unfair reasons (Davies, 2011). (FindLaw.UK, n.d.). (Guide, n.d.) (StatutoryInstruments, 2012) The ACS Code of Disciplinary and Grievance Procedures The Code stipulates that there should be a written statement of procedure governing disciplinary and grievance issues and should be given to each employee or it should be available to employees on demand such as through intranet. The procedures are generally incorporated in the employee handbook. It is desirable that the procedures are not mentioned in the contract so that the updated procedures are available separately and the employee is not tempted to raise frivolous disputes by looking into the contract every time. The code requires that within two months of employment, employee should be furnished with a statement of employment particulars that should include applicable disciplinary rules and procedures for disciplinary or dismissal proceedings. It should also mention to whom an aggrieved employee should apply against any disciplinary decision and whom the employee can approach for redressal of any grievance along with the guidance as to how the application should be made. The procedures should be tiered in such a way that employee can approach the next level if the first step fails. While statutory dismissal and disciplinary procedures (DDPs) apply to any reasons, the ACAS Code applies to only disciplinary situations of misconduct and poor performance. Once the disciplinary proceedings are initiated, the employer must carry out investigation of the disciplinary issues without due delay and establish facts. Paid suspension can be resorted to if necessary during the investigation. The employer should inform the employee of the allegations in writing. Any written evidence and statements of witnesses should also be given to the employee who should be informed of the time and venue of the disciplinary hearing and be advised that he can be accompanied by a fellow worker or a trade union representative at the time of hearing. The employer must explain the allegations and examine the evidence and the employee should be given opportunity to make out his case in defence. The employee shall have the right to ask questions, present evidence and raise points in regard to the witness statements if any. Thereafter the employee should inform his decision in writing without delay and in case of misconduct or poor performance, generally a written warning and a final warning before dismissal is ordered. However, gross misconduct need not be preceded by warnings but due process (disciplinary procedure) must be followed. If the employee is aggrieved by the decision, he can appeal in writing which should be heard without delay by a manager not involved in the previous proceedings and the employee can bring in a companion at the hearing of the appeal. If however employee directly approaches Employment Tribunal without an internal appeal, compensation may be reduced (Davies, 2011). Sodexho Defense Services Ltd v Steele (2009) Steele, the claimant was dismissed for steeling about ? 10,000 over a period of time while she was in charge of bagging up the money for the company, Sodexho she worked for. The practice was that at the end of each day, two members of the staff used to count the money and bag it up under the surveillance of CCTV. Between April and July, the claimant had bagged the money on occasions cash was found short. Employer’s investigation found that claimant switched off the CCTV to prevent screening of counting and bagging process. However, the footage showed the claimant approaching the camera before it was turned off. At the time of disciplinary hearing claimant admitted to counting and bagging and conceded that she should have kept the camera on during the counting and bagging. The Tribunal held the dismissal as unfair for the reason that the employer “wholly and irrationally” (p130) excluded the other employee from disciplinary proceedings as she had left employment. (Davies, 2011). The Employment Appellate Tribunal (EAT) reversed the decision stating that it was a fair dismissal with a commentary “any employer was fully entitled to take the view that claimant was guilty and investigation… was entirely adequate” (Davies, 2011, p. 130). Case merits Janice has worked for 2 years and Kelsey for less than a year. Janice has the right to apply for relief for unfair dismissal before the ETA as she has put in the qualifying period of employment. However, both the cases involve wrongful dismissal since the employer has not followed the procedure of ACAS code which is applicable for gross misconduct. The employer has not given them evidence to prove their guilt nor were they given opportunity to explain. For gross misconduct, the employer has not given the prescribed notice periods before dismissals. Moreover, the employer’s case is very weak in that the locker system was not foolproof. In the first place, there should have been no common locker which prevented pinpointing the guilty person. Besides, the security had another set of keys with which the lockers could have been opened without the workers’ knowledge. The employer has not conducted enquiries with the security staff. Conclusion In view of the above said inherent weaknesses in the locker system, the employer is not justified in dismissing both the employees that too without following the ACAS Code disciplinary procedure and without giving reasons for dismissals in writing. In order to mitigate the unfavourable outcome for the employer, the employer should offer to leave matter to be arbitrated and the employees allowed re-engagement or reinstatement especially because there is no prior history of misconduct on their part. Scenario 2 The question in this case is whether Robert’s employment could be terminated because of disability in spite of his service with the company for nearly 9 years or whether he could be re-deployed.. The EU Council Directive 2007/8/EC on equal treatment in employment and occupation prohibits discrimination based on disability among other grounds such as age, sexual orientation, religion or belief. Article 5 of the Directive requires the employers to enable a disabled employee to participate in employment unless it would cause disproportionate cost of burden on them. Article 9 of the Directive entitles an employee to make a claim for equal treatment if he considers himself wronged by the employer on the basis of his disability. European Court of Justice’s decision in Coote v Granada Hospitality Limited [1998] imposed an obligation on the member states to enact in their national law enabling disabled employee to be protected from employer’s retaliatory action. The protection is not available to a person not willing to do or capable of doing a job (Moffat, 2011). Employment Rights Act‘s section 98 (2) (a) deals with incapability which includes disability. Under this Act, disability is one of the fair reasons for dismissal. However, the employer is required to consult with the employees for chances of improvement in his work before dismissing the employee. The employer must allow reasonable time to recover from illness (FindLawUK, n.d ). The employee’s condition being one of the fair reasons for dismissal, the employer can consult with the employee for the possibility of terminating his employment before the actual dismissal is made. In this case, the employer is required to follow a fair procedure for dismissal that complies with the principles laid down by case law. The ACAS Code on Discipline and Grievance is not applicable in cases of dismissals due to ill-health or capability. However, the employer is required to adopt a fair dismissal procedure to meet the ends of justice. Thus, the employer must give sufficient notice of meetings to the employee in advance regarding matters to be discussed in the meeting and follow the outcomes of the meeting. He should also allow a companion to be present at the meeting. The employer should carry out investigation in this regard. He should also give opportunity to the disabled employee to give representations and give him a right of appeal. The employer should obtain clear prognosis of the employee’s disability and consider alternative positions if possible. The employer’s right to terminate employment on the grounds of disability is highly restricted if the employee is entitled to receive relief through Permanent Health Insurance (PHI) Schemes. Note that Robert has served for nine years. Thus, it will be unlawful for the employer to dismiss if the employee is in receipt of PHI reliefs by virtue of an implied condition against dismissal during his incapacity which would deprive him of the disability benefit. However, the employer is free to incorporate in the contract of employment his right to terminate in case of disability in spite of such disability benefits. Thus, an employee dismissed due to his illness can make a claim under the Disability Discrimination Act 2005 or Equality Act 2010 as maybe applicable. (Davies, 2011). The employee has to substantiate that employer meted out to him unfavourable treatment because of disability described as “a physical or mental impairment which has a substantial and long-term adverse effect upon a person’s ability to carry out normal day to day activities” (Davies, 2011, p. 460). A person can make disability related dismissal claim both the under Employment Rights Act 1996 as an unfair dismissal and under the Equality Act 2010 as disability discrimination. There will be substantial overlap between these two Acts. No provision in the Equality Act 2010 bars an employee from claiming under Employment Rights Act 1996 also. A dismissal on the grounds of disability does not make an automatically unfair dismissal. Equality Act 2010 does not conflict with section 98 of ERA 1996. If an employee is governed under the Equality Act 2010, it is not possible for the employer to make a plea that the disabled employee was incapacitated in terms of section 98(2) (a) of the ERA 1996. In Archibald v Fife Council [2004] UKHL 32 (2004) IRLR, it was held that employer is bound to make reasonable adjustments in the working conditions including transferring of jobs. There are advantages for employee to prefer a claim under Equality Act 2010 as there are no restrictions on age, qualifying period of employment and the amount of compensation to be awarded (Holland & Burnett, 2012). Conclusion. Robert Keys who is now an almost disabled employee is unfit to sales job hereafter since he cannot efficiently undertake travel jobs. At the same time, provisions of the Employment Rights Act 1996 and Equality Act 2010 make it very hard for the employer to terminate his employment without attracting claims for unfair dismissal. In the absence of evidence against him ( i.e acting against the employer’s instruction and having been drunk while driving ), the disability has occurred during the course of employment for which employer is liable. Fortunately, Robert Keys is qualified with a computing degree with which he can be considered for alternative employment involving computing within the company. References Archibald v Fife Council [2004] UKHL 32 (2004) IRLR Coote v Granada Hospitality Limited [1998] IRLR 656 Davies, A. (2011). Workplace Law Handbook 2011:Employment Law and Human Resources. Cambridge: Workplace Law Group. Employment Rights Act 1996 C 18 < http://www.legislation.gov.uk/ukpga/1996/18 > FindLaw.UK. (n.d.). Unfair Dismissals FAQs. Retrieved December 9, 2012, from Find Law UK: http://www.findlaw.co.uk/law/employment/unfair_dismissal/500169.html FindLawUK. (n.d ). Does your employer have a fair reason to dismiss you? Retrieved December 9, 2012, from FindLaw UK: http://www.findlaw.co.uk/law/employment/losing_a_job/500305.html Guide. (n.d.). Dismissing Staff: Part 3. Unfair Dismissals. Retrieved December 9, 2012, from Gov.UK: https://www.gov.uk/dismiss-staff/unfair-dismissals Holland, J., & Burnett, S. (2012). Employment Law. Oxford: Oxford University Press. Moffat, J. (2011). Employment Law. Oxford: Oxford Univesity Press. Sodexho Defense Services Ltd v Steele (2009) UKEAT/037/08 StatutoryInstruments. (2012). The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012. Retrieved December 9, 2012, from Legislation.gov.uk: http://www.legislation.gov.uk/uksi/2012/989/note/made Read More