Fair and Unfair Dismissal in Employment - Essay Example

Employment Law Fair and Unfair Dismissal in Employment: When considering whether or not dismissals for potentially fair reasons are fair, the test the tribunals use is one of ‘reasonableness’. In situations where unfair dismissal occurs, it is the duty of the employer in law to determine why the employee was dismissed unfairly. They also have to establish if there are other reasons that led to the dismissal. Where the employer is unable to give valid reasons for the dismissal, then the dismissal is deemed to be unfair as was seen in the case, (Adams v Derby City Council, 1981). Reasons for dismissal must be set and based on the breach of the contract of employment and conditions stated by the employer to the employee. The burden to prove that the employee has been unfairly dismissed lies with the employer to give sufficient reasons to justify the dismissal. Employers have defences in law to justify their reasons and prove that the dismissal was fair. This was seen in (British Leyland (UK) Ltd v Swift, 1981), where the court held that the test that should be applied when determining whether there has been a fair dismissal was whether it was reasonable for the employer to have dismissed the employee on the basis of gross misconduct which had been found. The same was seen in (Iceland Frozen Foods Limited v Jones, 1983) where the band of reasonableness test was laid down. It was held that, in determining the fairness of dismissal, the employment tribunal ought to consider whether the conduct of the employer was reasonable. The provisions of the Employment Rights Act, 1996, protect employees under a contract of employment. One provision is involved that every employee has the right not to be unfairly dismissed by their employer, (Employment Relations Act 1996, s 94). Following this Act Craig is covered by the provisions of the Act, to claim a remedy for unfair dismissal under section 94. If employees want to qualify for protection under section 94, they must have been in continuous employment for a period that is not less than one year before the end of the effective date when their contract is terminated, (Employment Relations Act 1996, s 108). The issue of whether an employee would have been dismissed anyway irrespective of the procedural failings, was set forth in the Polkey rule, (Polkey v AE Dayton Services Ltd, 1987). The Employments Rights Act in section 94 makes provisions that employees have the right not to be unfairly dismissed from employment. procedural fairness examines whether the dismissal was carried out in a procedurally fair manner. This is in connection with past similar decisions, opportunities to appeal and the like. In this case, this was not granted to Craig hence he was dismissed unfairly. The Polkey rule states that, where the dismissal is procedurally unfair but not substantively unfair, then the rate of compensation should be reduced to reflect this. In this case, there was no evidence showing that there was reason to dismiss either procedurally or substantively hence Craig was dismissed unfairly and should get his full compensation. Capability: Craig has been an employee at the Carriage for nine years that means he must have had a contract of employment. It also means that he had signed with his employer a dismissal procedures agreement based on the provisions of the Act, (Employment Relations Act 1996, s 110). In the nine years of employment, there is no mention by the employer that there were any issues or problems of indiscipline in his record. Employers have to prove incompetence or lack of capability as a legitimate reason for dismissing an employee. This was seen in (Alidair Limited v Taylor, 1978), where it was held that, where an employee is dismissed on the grounds of incapacity, it is then sufficient that the employer believes this on reasonable grounds and he does not have to prove the incompetence. The employer is under an obligation in the Act to show that, there was a justifiable reason for dismissing the employee, (Employment Relations Act 1996, s 98.1). The reasons given by the employer must relate to their capability and qualification in their day to day working activities. Moreover, it also deals with the conduct of the employee within employment or whether the employee can continue to work without breach the Act, (Employment Relations Act 1996, s 98.2). Qualifications: Employers are under an obligation in section 98 of the Employment Rights Act to prove that there were valid reasons for dismissing their employees. Where there are issues of inherent incapability, the employer may have grounds for dismissal. This was seen in (Blackman v Post Office, 1974), where an employer’s aptitude test were found to constitute qualifications. It was held that, when the employee repeatedly failed the test, then he was neglectful and not capable of performing work of the kind he was employed to do. In this case, Craig was capable of completing his tasks competently, but his assistant was not. It is the duty of the Carriage as the employer to dismiss Craig’s assistant for his incompetence and not blame his failures on Craig. Conduct: Where an employer dismisses an employee for misconduct, the employer is under a duty to show that he believed that the employee was guilty of the offense at the time of dismissal. This was established in (British Home Stores v Burchell, 1978), where it was held that the employer must have reasonable grounds for holding his belief and that he had carried out investigations leading to the alleged offense. We are informed that Craig’s assistant had been struggling with his work, but Craig had not reported this to Rhondri. His employer was therefore on the belief that Craig was falling behind on his work hence was deemed incompetent. Other Substantial Reason: An employer may show cause for dismissal by giving other reasons that are substantial enough as to justify the dismissal. This was seen in (Hollister v National Union of Farmers, 1979), where an employee was dismissed for refusing to accept the terms of a re-organization. The court held that, the dismissal was based on a substantial reason, hence there was no requirement to consult the employee. Craig’s duty of care. According to Employment Rights Act 1996, section 98 (4), Rhodri may argue his claim of reasonableness that Craig’s dismissal was fair based on his conduct as an employee. This is based on the fact that the employee shouted and swore at his colleague and employer therefore it was fair dismissal. In the Townsend case, there was a determination on the fairness of the dismissal. Townsend was accused of using threatening and abusive language in the workplace. This occurred during a heated argument during a meeting with his line manager. Townsend was alleged to have shouted at his manager Miss Janska and also shoved his finger in her face, and she deemed his actions to be threatening and intimidating, therefore it was fair dismissal (Townsend v Gillette UK Ltd, 2012). Reasonableness of Dismissal and Procedure of Dismissal: In our case there is an argument between Craig and Rhodri at the workplace and it is essential to look at all the circumstances before making a decision. Craig was dealing with personal problems at home, with his wife being sick and at the same time his assistant Rob was incompetent at the workplace. All these factors contributed to his actions and he can use this as a defense for his actions towards his employer. In the British Leyland case, the employee had worked for the solicitors for twelve years and there had been no prior complaints about her work. She was, however fired on the grounds of gross misconduct for being rude to two clients who sought access to see the solicitors. The court relied on the reasonable test, whether the employer at the time of dismissal had reasonable grounds for believing that the employee was guilty of the offense. In the same way, Rhondri was convinced at the time when he fired Craig that he was incompetent and that his explanations were just excuses for his failures. He had been observing his work for some time, and because Craig had not informed him of his personal problems, it would have been difficult for him to know whether he was having stress at home and work. In addition, the British Home Stores Ltd case shows some of the principles and the court set out three tests in determining whether the dismissal was fair or not. They must believe that the reason was fair and that they had reasonable grounds to uphold their belief. They must also show proof that they conducted investigations to determine the issue to ensure procedural fairness. There is no need in determining wrongful dismissal to state whether the employee contributed to his dismissal or they acted unreasonably, (British Home Stores Ltd v Burchell, 1978). The employment tribunal and court will still have to consider whether the employer followed the ACAS Code of Practice on Disciplinary and Grievance Procedures, and whether or not the misconduct was so serious that a reasonable employer could have dismissed the employee for it. Where the employee is involved in matters of gross misconduct, the employer has a duty under the code to give the employee a right of appeal. Further, the employer must give a record of the disciplinary procedures and history that he went through with the employee. In our case, there is no record any disciplinary procedures against Craig, which means this was the first time that Craig had a bad service, therefore the mistake cannot represent his qualifications as a pastry chef. In addition, Craig could argue that the dismissal did not fall within the reasonableness test. The employer must ensure that the dismissal process is reasonable. He must give a reasonable and subjective opinion. The conduct of Craig cannot be said to be gross misconduct and he did not threaten anyone. Furthermore, unfair dismissal also applies where an employee is suffering stress and as a result is not able to carry out their duties effectively. In the Santos case, the court held that the decision taken to dismiss Mr. Santos was one that no reasonable employer would have taken. Being in a position of responsibility, he had chosen the most effective means of carrying out the instructions given to him by his employer. Here the employment tribunal held that he had been unfairly dismissed and Santos was awarded for loss of earnings, (Santos v DI Sotto Foods Ltd, Et/3301248/11). In our case, Craig was dealing with personal problems at home, with his wife being sick and in hospital and at the same time his assistant Rob was incompetent. As a pastry chef Rob was making mistakes when making caramel biscuits. These reasons also highly contributed to his unstable nature and stress, hence in order to dismiss Craig fairly, Rhodri should have taken account of his mental and personal state. An employee who had an argument with his employer was found by the employment tribunal to have been dismissed unfairly. Dr. Farnaud had a heated argument with his line manager Mrs. Gladstone and he raised his voice against her. She alleged that he engaged in offensive, intimidating and threatening behavior that made her feel fearful and he was subsequently dismissed for gross misconduct. The tribunal found that his dismissal was manifestly and procedurally unfair as no investigations were carried out and the witnesses who were present were not interviewed before the dismissal was effected, (Farnaud v Dr Hadwen Trust Ltd ET/1201872/2011). The argument between Craig and Rhondri happened in the presence of all the employees, some of who got emotionally affected by the event. The employer did not conduct any investigations to try and determine whether there were any underlying problems with Craig’s behavior and we are not informed of any testimonies against Craig by his colleagues. Craig, though he was harsh did not engage in any threatening and offensive language as he was trying give an explanation of his personal situation before Rhondri verbally attacked him. It is important to determine whether the dismissal is fair or not, when it is based on a heated argument between the employer and the employee. In the Townsend case, Mr. Townsend allegedly shouted at his line manager and conducted himself in a manner that threatened and intimidated her. He was dismissed for gross misconduct, and he took the matter to the employment tribunal. It was held that, he was guilty of gross misconduct and the decision to dismiss him was within the range of reasonable responses, (Townsend v Gillette UK Ltd, ET/2701093/2012). In our case, Rhodri on dismissing Craig did not meet this point, there is no evidence to show that Craig acts amount to gross misconduct; therefore the Rhodri dismissed him unfairly. Craig may also bring a claim for unfair dismissal, but there are certain conditions that must first be met before satisfying such a claim. He must show that he was qualified for the position and also that he was dismissed. Craig was a pastry chef who had worked at the Carriage for a period of nine years hence he meets the requirement for qualification and capability. (Employment Rights Act 1996, section 98 (3)). However, it may prove difficult to prove that he was dismissed by Rhodri, due to the fact that the dismissal happened through a text message sent to him an hour after he left the restaurant. In this situation, having a copy of the text message may qualify as sufficient proof of dismissal. Further, Craig can make a claim for unfair dismissal under the Employment Relations Act 1996, section 111, against Carriage on the grounds that he was dismissed without notice, and that no investigations were carried out regarding the reasons for his dismissal (Employment Relations Act, 1996, s 111). Craig has a right in law to make a claim, as he requires his job to pay for his wife’s medical bills. He can also make a claim under section 117 for compensation for unfair dismissal and loss of earnings in the time when his employer breached his contract. Compensation: It is important for the employment tribunals and the courts to determine the amount of compensation, if any, will be awarded to the aggrieved party. This was determined in (Norton Toll Co Ltd v Tewson, 1972), where the court held that damages awarded for wrongful dismissal only extended to financial loss and not pecuniary loss like injury of pride and feelings. In this case, Craig may have a claim in law for loss of earnings, seeing that he is the sole breadwinner and the primary caregiver for his sick wife. Taking away his salary arbitrarily amounts of financial loss in terms of earnings for the period he had been unemployed. However, although Rhondri shouted at him in front of his juniors, he will not be entitled to any compensation for any loss of respect or injury to his feelings in this regard. Sexual Harassment in the Workplace: The Employment Rights Act, section 100 (1) (d), makes provisions that employees must be protected from all forms of danger in the workplace including sexual harassment. In (Harvest Press Ltd v McCaffrey, 2000), McCaffrey was fired from his employment when the employer believed the version of events of his alleged harasser. The court held that, the employer had a duty to protect him from all danger, including harassment from fellow workers when he is on the premises. Rhondri is under a duty of care in law to ensure that Melissa does not suffer any harm or danger in the course of her employment. He must ensure that proper disciplinary procedures are taken against Harold. Identification of Harassment: An employer is vicariously liable for harassment that is committed by his employee. This was seen in (Majrowski v Guys and St. Thomas NHS Trust, 2006). In this case, the court confirmed the rule that, employers owed a duty of care to their employees to ensure that they were not harassed or bullied in the workplace. At the time when the offense occurred, he should have taken immediate action and reprimanded Harold for his action and also issued him with a warning notice or a suspension for his gross misconduct. The suspension would fall under the test of reasonableness in the grounds of gross misconduct towards a fellow employee against the laws of employment. The Equality Act 2010 gives a legal definition of the term harassment in Section 26. A person is said to harass another when they engage in unwanted conduct that relates to a protected characteristic. Harold’s conduct falls under the provisions of Section 26(b) (ii), because, his actions created a humiliating and offensive environment for Melissa, among her peers at work. In addition to this, the conduct was of a sexual nature and unwarranted by Melissa, she perceived that her reputation would be ruined by the events, (Section 26(4)). The Protection from Harassment Act, also makes provisions against harassment, that a person must not pursue conduct that amounts to harassment, where it would appear to a reasonable man to amount to harassment, (section 8(1)). Liability of Employers and Employees: There is a legal obligation in law that holds employers liable for the negligent and illegal actions committed by their employees in the course of their employment. Section 119 of the Equality Act creates this obligation, with the mandate that anything done by an employee is also seen to be done by the employer, (Section 109(1)). Rhondri is therefore liable for the actions of Harold, irrespective of the fact that, he did not have any principal knowledge of the acts and he did not approve of it, (Section 109 (3). He should have taken all possible measures to reprimand Harold immediately, and also taken measures to protect Melissa. Employers will be held liable where they give opportunities to their employees to commit negligent acts in the workplace. This rule was applied in (Lister and Others v Hesley Hall, 2001). Employers have a duty in law to protect their employees from any form of harassment and to take necessary steps to prevent acts of sexual harassment. The employer should ensure that the harassment stops once it has been brought to his attention. In our case, Melissa was harassed by Harold, Harold start kissing her and did not stop even after she had asked him to stop sexual harassment. There is also a legal obligation for the employer in his defense, to take all reasonable steps to prevent the employee from committing the prohibited actions, (Section 109(4). It is evident that, as an employer, Rhodri did not take any action to stop harassment behavior, as he stood there with the rest of the employees. There is a legal obligation for persons not to pursue any conduct that amounts to harassment of another or that he knows will amount to harassment of another person, (Protection from Harassment Act, section 1). Remedies: In this case, Harold’s conduct towards Melissa amounted to harassment and the same would suffice should a reasonable person be in possession of the same information, (Protection from Harassment Act, section 1(2)). Harold’s actions therefore amounted to a breach of law and he is therefore guilty of an offence and liable to imprisonment of six months or a fine, (Protection from Harassment, section 2). He could also face constructive dismissal for the purpose of sexual discrimination against Melissa, (Derby Specialist Fabrication Ltd v Burton, 2001). Sexual harassment includes constructive dismissal because it’s a discriminatory act. The discrimination persists for the time when the alleged perpetrator here being Harold is still in employment, and the employer has failed to act on the discrimination. Rhodri also, breached Melissa’s rights under the contract of employment. Melissa can seek damages in law for personal injury caused to her by Harold under the Act. Employers have a duty in law to ensure that their employees work in the most appropriate conditions. Harold should in law be issued with a discrimination notice based on the provisions set in the employment contract he signed with the carriage. Melissa being the victim is eligible for damages in law for anxiety caused by the harassment, due to the fact that the actions occurred in the workplace, (Protection from Harassment Act, section 3). She is also entitled under a civil remedy to get an injunction that stop Harold from committing any similar conduct in the future. Under the Act, Melissa is entitled to an award of damages including damages for anxiety caused by the harassment. In addition, she is also entitled to grant of interim interdict that protects her from any further harassment by Harold, (section 8(5)). References: Statute: Employment Act 2002 (Dispute Resolution) Regulations 2004. Employment Rights Act 1996. Organization of Working Time Act 1997. Sex Discrimination Act 1975. Terms of Employment Act 1994. The Minimum Notice and Terms of Employment Act 1973. Trade Union and Labour Relations (Consolidation) Act 1992. Transfer of Undertakings (Protection of Employment) Regulations 2006. Unfair Dismissals (Amendment) Act 1993. ACAS Code and Practice. Journals: Waas. 2010. The Legal Definition of the Employment Relationship. European Labour Law Journal. 1(1) 45. Case Law: Beloff v Pressdram Ltd [1973] 1 All ER 241. British Leyland (UK) Ltd v Swift [1981] IRIR 91 CA (Civ Div). Blackman v Post Office [1974] ICR 151. Castleisland Cattle Breeding Society v Minister for Social and Family Affairs (20.04) IR 150. Carmichael v National Power PLC [1999] ICR 1226. Farnaud v Dr Hadwen Trust Ltd (ET/1201872/2011). Go Kidz Go v Bourdouane (EAT 10 September 1996). Harvest Press Limited v McCaffrey [1999] IRIR 778. Hawkins v Ross Castings (1970) 1 All ER 180. Henry Denny & Sons v Minister for Social Welfare (1998) 1 IR 34 at 50. Holister v National Union of Farmers [1979] IRLR 238 (CA). Iceland Frozen Foods v Jones [1982] IRLR 439 (EAT). Lister & Others v Hesley Hall Ltd [2001] UKHL 22. Norton Tool Co Ltd v Tewson [1972] IRLR 86. Majrowski v Guy’s and St Thomas’ NHS Trust [2006] UKHL 34. Market Investigations Ltd v Minister of Social Security (1969) 2 QB 173 at 184. McAuliffe v Minister for Social Welfare (1995) 2 IR 238. Palmer’s v Southend-on-Sea Borough Council [1984] IRLR 119. Polkey v A E Dayton Services Ltd [1987] IRLR 503. R (Shoesmith) v Ofsted & Ors (2011) CA. Re Sunday Tribune (1984) IR 505. Roche v Kelly (1969) IR 100. Santos v Dissotto Foods Ltd (ET/3301248/11). Tierney v An Post (2000) 1 IR 536. Townsend v Gillette UK Ltd (ET/2701093/2012). Weston Recovery Services v Fisher (UKEAT/0062/10/ZT. Read More