The Legal Claim of Unfair Dismissal - Essay Example

Employment Law Advise Michael to whether Richard is likely to succeed in any legal claim of unfair dismissal, against the company and as to the nature of any remedies he may receive. (Note you should discuss unfair dismissal only in answering this question.) Issues: The main issue in hand is whether, under law, Richard’s dismissal on disciplinary grounds is valid, and could be enforceable by law. If he has violated any norms, or Code of Conduct of the company, or any terms of his appointment, then it could reasonably be said that his dismissal is fair and cannot be contested. But if however, there are no norms that could force Richard to work in an area, or department which he is not supposed to work in the normal course of his duties, the subsequent developments and his dismissal could perhaps be viewed as an unfair dismissal, depending upon what constitutes unfair dismissal in the context of this case and the contractual agreement between Richard and his employer “There are several ways your dismissal could be unfair: your employer does not have a fair reason for dismissing you (eg if there was nothing wrong with your job performance) your employer did not follow the correct process when dismissing you (eg if the have not followed their company dismissal processes).” (Employment: unfair dismissal, n.d.). Further it is seen that a dismissal could also be termed as an unfair one, “If your employer dismisses you for exercising or trying to exercise one of your statutory (legal) employment rights” which include, interalia “An employees statutory employment rights include a right to a written statement of employment particulars.” (Employment: unfair dismissal, n.d.). Thus, it could be said that indiscipline arouse because Richard was asked to work in a department which was outside his job description.. In the event there is a contract of employment between Richard and his employer, it would specifically stipulate the kind of work that Richard would be expected to do, and dismissing him on ground that he refused to do work which he was not expected to do in the first place, could be viewed as a kind of unfair dismissal. The fact of indiscipline (walking out of the office) has been a natural consequence of Richard being asked to do work that was not really needed of him to perform, and he could hardly be held responsible for it. Another factor that is favourable for Richard is that he has been working for the last ten years or so, which speaks well of his long term employment track record. Rule: According to Section 94 of the Employment Rights Act 1996, an employee has the right not to be “unfairly dismissed.” (Employment rights act 1996: part X: unfair dismissal, n.d.). Further, under Section 98 (1) (a) of ERA 1996, it is necessary for the employers to exhibit the causes for their decision to dismiss the said employee, and again under Section 98 (4) (a), having complied with Section 98(a), the fact whether the decisions was reasonable or unreasonable depends “ (a) on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.” (Employment rights act 1996: part X: unfair dismissal, n.d.). Application: Thus, applying this rule under Section 98, it would become incumbent upon the part of Michael to prove that the dismissal of Richard was a fair dismissal and in line with the terms of employment with the said employee, Richard. Further, it is possible on the part of Richard to bring about action against the said employer. Initially, Richard could try for informal dialogues with his employers in order to get reinstated. If this is not tenable or possible, it is possible for him to seek mediation through a mediator or arbitrator, who would negotiate between both the parties. In the event this does not materialize, it is possible for Richard to file a petition with the Employment Tribunal for redressal of his grievances. The application to the Industrial Tribunal would have to submitted within a period of three months from the date of termination of the aggrieved employee. It is also possible that the Tribunal, depending upon the merits of the case could award damages or compensation to Richard for wrongful termination of his employment and may even recommend reinstatement of the terminated employee with due compensation. Conclusion : In this case of wrongful termination on disciplinary grounds by Michael, a lot would depend upon the contractual agreement between Richard and his employer, Michael. If his contract is for working only as an accountant, Michelle’s orders to force him to do a non-accountant’s duty could be seen as violation of the employment obligations by the employer, and it could be well be decided on lines of an unfair dismissal. 2. Advise Michael as to whether Susan can present any legal claim against the company. Your advice should include explanation of any remedies Susan will receive if any legal claim succeeds. Issue: Apparently, it is seen from a reading of this case that Susan has been on short term contract since she has begun working only since November1, 2008, and she decided to resign on September 25, 2009, that is within a period of 12 months of her appointment as Head of Marketing Department (HOMD). The first thing that needs to be considered is whether there are specific clauses in the terms of appointment of Susan that includes the fact that she may be demoted if not found suitable for the post of HOMD. For instance, if her contract of employment mentions that clause, it is well within the power of Leisurama Co. Ltd, her employers, through Pauline, to demote her services due to lack of performance at that level. However, the fact remains that even if her performance at the level of HOMD were found unsatisfactory, it is obligatory on the part of her employer, through Pauline to inform her as to what was going wrong, and how things need to improve, which apparently was not done, except the fact that she was summarily demoted on September 25, 2009, without any kind of justification, except that she was found lacking the attitude necessary to work as Head of Department. Pauline has not categorically told her about her deficiencies that caused her to lack the attitude to work as HOD. The tribunal would view this matter while reaching a decision. Rule: This could be seen in terms of a constructive dismissal on the part of Leisurama Co Limited through the bullying tactics of the new manager, Pauline. “Constructive dismissal is when an employee is forced to quit their job against their will because of their employers conduct.” (Employment: constructive dismissal, n.d.). In this case, it is seen that Pauline, as the new boss has resorted to intimidatory tactics by pressuring Susan through criticizing her actions in front of junior staff and other “bullying behaviour” intending to put pressure on Susan. (Employment: bullying in the workplace, n.d.). This could be seem as a kind of unfair pressures that even Pauline the new manager could have foreseen would, undoubtedly result in the resignation of the employee, Susan due to her unpleasant behaviour with Susan. The fact that Susan left immediately also proves that she was not ready to accept the demotion, however by resigning Susan has left the issue open as to whether she was dismissed or she had left on her own accord. Her employers, Leisurama Co Limited could now “claim there has been no dismissal.” (Employment: constructive dismissal, n.d.). Application: This seems to be an instance of termination of work coming within the purview of Section 95(1) (c) of ERA 1996. Under this, “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.” (Employment rights act 1996: part X: unfair dismissal, n.d.). In the event the dismissal is perceived as an unfair one, Susan could proceed to the Industrial Tribunal for claim for “reinstatement” under the provisions of Section 113 of ERA 1996. “If no order is made under section 113, the tribunal shall make an award of compensation for unfair dismissal (calculated in accordance with sections 118 to 127) to be paid by the employer to the employee.” (Employment rights act 1996: part X, n.d.). The remedies that Susan could claim in the event she wins the tribunal case would be of three types: “(a) basic award (calculated in accordance with sections 119 to 122 and 126), and (b) a compensatory award (calculated in accordance with sections 123, 124, 126 and 127). (2) Where this subsection applies, the award shall also include a special award calculated in accordance with section 125 unless— (a) the complainant does not request the tribunal to make an order under section 113, or (b) the case falls within section 121.” (Employment rights act 1996: part X, n.d.). The basic award that would be provided would not be less than £ 2770 The compensatory award is designed to put the aggrieved party, in this case, Susan in a position had the constructive dismissal not take place, in other words it could be with regard to payment from the time of the award to the date of termination, in terms of monthly salary that is due to Susan. Finally, coming to Special award, it could with regard to the special circumstances of the case and, at the discretion of the court would be, in the event she does not opt for reinstatement, the sum total of the loss of wages from the date of termination till the time she is fit to perform gainful employment, i.e. special award would be monetary losses sustained from September 25, 2009 to November 2010. Conclusion: This is a typical case of constructive dismissal and the laws pertaining to this law would hold good. In most cases constructive dismissals could be deemed to be unfair dismissal and such provision under various sections would hold good. However, the fact that here had been no economic losses, due to the demotion (there has been a reduction in status from HOMD to Asst. HOMD, albeit no reduction in salary) would be a factor that would also have to be considered by the Tribunal and a reasonable sum for this rejection by Susan would need to be deducted from her total dues available to her through these relief and remedial measures 3 Advise Michael as to whether Kate is entitled to a statutory redundancy payment and as to what the amount of any such payment must be. Issue: Kate’s services have been terminated due to her unwillingness to submit to a relocation to London Office, as a result of an internal reorganization within Leisurama Co. Ltd. at the same remuneration along with a relocation package also thrown in. She cited person reasons for her unwillingness to accept the relocation package and opts out of the company thus perhaps giving rise to a shade of dismissal under compulsion. In this case, it is seen that although Kate had applied for statutory redundancy payment, the same was rejected by the Company. Law: Under such circumstances, Kate needs to take up her case of statutory redundancy payment with the “Employment Tribunal” as envisaged in Section 149 of ERA 1996. (Employment rights act 1996: part XI, n.d.). However, if one were to follow the provisions of Section 141 (3) (b) it is said that if “those provisions of the contract as renewed, or of the new contract, would differ from the corresponding provisions of the previous contract but the offer constitutes an offer of suitable employment in relation to the employee,” the employee would not be eligible for redundancy benefits. (Employment rights act 1996: part XI, n.d.). But the important matter in this case is that technically, Kate has not been rendered redundant since she has been offered an alternative employment in London, at the same salary with perhaps an increase due to relocation benefits. But the fact is that she has rejected this offer for personal reasons and sought to invite dismissal on the part of her employer, Leisurama Co. Ltd. under the provisions of Section 141 (4) (d) of ERA 1996. (Employment rights act 1996: part X, n.d.). Rule: However, assuming that she pursues this redundancy payment case in the Industrial Tribunal and wins the case, her ex-employers would have to pay her redundancy compensation as follows: The rules regarding release of redundancy payment are found in Section 162 (1) and (2) of ERA 1996. Under it, such payments need to be considered after: (1)(a) “Determining the period, ending with the relevant date, during which the employee has been continuously employed, (b) Reckoning backwards from the end of that period the number of years of employment falling within that period, and (c) Allowing the appropriate amount for each of those years of employment. (2) In subsection (1) (c) “the appropriate amount” means— (a) one and a half weeks pay for a year of employment in which the employee was not below the age of forty-one….” (Employment rights act 1996: part XI: chapter V, n.d.). In this case, Kate has been in continuous employment for the last five and half years, ie since May 04, 2004 till the definite date, that is, with two months notice, viz. January 4, 2010. She is now 43 years old and draws net salary of £650/per week therefore as per the provisions of Section 162(2) (a), she is entitled to one and half week’s payment for each year of employment. Since her total worked period is 5 years and 7 months (including the notice period of two months) the total weeks is 8.37 for the entire span. 8.37 weeks @ £650/per week works out to £650 works out to £5440.50. Conclusion: In the event Kate’s claim is sustainable in the Industrial Tribunal in which she has put forth her application for statutory redundancy payment, her total dues to be gained from her ex- employer, Leisurama Co. Ltd. works out to £5440.50. 4 Advise Michael as to whether Janet is likely to succeed in any claim for sex discrimination and, if so, as to the remedies a tribunal might award. In answering this question you may assume that Michael’s proposed business reorganisation will genuinely result in financial savings. (Note you should only discuss possible claims arising under the Sex Discrimination Act 1975 in answering this question.) Issue: The issue in this case is that Janet, being married women with small children, she is not in a position to work overtime compulsorily, as per the new rules brought about by the management of this company through Michel. She feels she is being discriminated against, since other staff could benefit from this new rule, but because of her marital status and personal problems at home, she is not able to accede to the management’s request and thus needed to relinquish her job. Rule: Direct and indirect discrimination against married persons in employment field. Under Section 3 of the Sex Discrimination Act, 1975, (1) “In any circumstances relevant for the purposes of any provision of Part 2, a person discriminates against a married person of either sex if—… (b) he applies to that person a provision, criterion or practice which he applies or would apply equally to an unmarried person, but—(i) which is such that it would be to the detriment of a considerably larger proportion of married persons than of unmarried persons of the same sex, and (ii) which he cannot show to be justifiable irrespective of the marital status of the person to whom it is applied, and (iii) which is to that person’s detriment.” (Employment rights act 1996: Part 1, n.d.). Again, “The 1970 Equal Pay Act makes it unlawful for employers to discriminate between men and women in terms of their pay and conditions where they are doing either: the same or similar work work rated as equivalent in a job evaluation study by the employer Work of equal value.” (Employment: sex discrimination and equal pay, n.d.). In this case it is seen that like ten of her colleagues, Janet are indulging in the occupation of fitness instructors, and therefore, she could not be favoured over the others. However, due to personal reasons, she is not able to accede for compulsory overtime work, while this could be possible for her other unmarried colleagues. It is seen that since Michael is applying pressure for working against Janet’s will on overtime basis, it is a kind of discrimination being shown to marital status. Overtime could be worked by people who wished to do so, and must not be compulsorily Application: The Sex Discrimination Act 1975 expressly prohibits any discrimination due to marital status, or gender. Thus, it is quite possible that considering Section 3 of the Sex Discrimination Act 1975, it is unlawful if any kind of discrimination to be made “(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or (b) by dismissing her, or subjecting her to any other detriment.” (The sex discrimination act 1975, 2009). Thus, Janet is very well authorised to file a complaint with the Industrial Tribunal for unlawful dismissal arising out of gender discrimination. The tribunal would assess her complaint and pass necessary orders as deemed necessary, considering the facts and circumstance of the case and the defence pro-offered by her employer, Leisurama Co. Ltd. It is quite possible that if the Tribunal finds her employer guilty gross violation of the SDA 1975, they would have to pay fine and also if necessary reinstate the dismissed employee with full retrospective benefits. Conclusions: Gender discrimination is seriously viewed in the United Kingdoms since women form a formidable part of the work force. It is necessary that issues like the present one need to be remedied either by the employers themselves, through arbitrators or mediators, failing which the need for intervention by the Industrial Tribunal would be envisaged and sought. The findings and recommendations of the tribunal is final and binding on both the aggrieved employee and the professed discriminating employers. The penalties could be in terms of fines etc, and the remedies could include reinstatement of the aggrieved employee with retrospective emoluments and benefits, and also ensuring that such kind of discrimination does not occur in future. There have been many modifications and amendments to SDA 1975 over its useful life which goes to show the government’s commitment and determination in rooting out individual and collective cases of discrimination on any basis. However, to strictly enforce SDA it is necessary that co-operation of both employers and employees are instituted and correct practices established that could reduce this menace to the minimum. Reference List Employment: bullying in the workplace, n.d. Direct Gov: Public Services All in One place. [Online] Available at: http://www.direct.gov.uk/en/Employment/ResolvingWorkplaceDisputes/DiscriminationAtWork/DG_10026670 [Accessed 6 January 2010]. Employment: constructive dismissal, n.d. Direct Gov: Public Services All in One place. [Online] Available at: http://www.direct.gov.uk/en/Employment/RedundancyAndLeavingYourJob/Dismissal/DG_10026696 [Accessed 6 January 2010]. Employment rights act 1996: part 1: discrimination to which act applies, n.d. OPSI: Office of Public Sector Information. [Online] Available at: http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1975/cukpga_19750065_en_2#pt1-l1g1 [Accessed 6 January 2010]. Employment rights act 1996: part X: chapter II, n.d. OPSI: Office of Public Sector Information. [Online] Available at: http://www.opsi.gov.uk/acts/acts1996/ukpga_19960018_en_12 [Accessed 6 January 2010]. Employment rights act 1996: part X: unfair dismissal: chapter I, n.d. OPSI: Office of Public Sector Information. [Online] Available at: http://www.opsi.gov.uk/acts/acts1996/ukpga_19960018_en_11 [Accessed 6 January 2010]. Employment rights act 1996: part XI: chapter V: other provisions about redundancy payments, n.d. OPSI: Office of Public Sector Information. 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[Online] Available at: http://www.pfc.org.uk/node/297#discrim-by-employer [Accessed 6 January 2010]. Read More