Major Situations in Employment Law - Essay Example

Situation One - At the Ipswich Depot: The Company has just received a “discrimination” questionnaire regarding a local young man of Asian background who has applied twice to the company for a job as a mobile engineer. He has an engineering qualification from a good university, and has undertaken as part of his course work experience with Mann’s at Bury St Edmunds who import Claas agricultural equipment. On reviewing the application forms he has submitted he appears to be at least as well qualified as those who did get the jobs. The first time he applied he got an interview and the second time he applied he did not get asked to attend for interview, both times it was the same manager who made the decision. The company application form does not have a separate equal opportunities section. The managers notes are inconclusive as to why this young man did not get the job at interview the first time, and the second time on paper he was as well qualified as any of the other applicants who were interviewed, the form just shows that the manager wrote “unsuitable – no interview” on the top. At no time have any of his supplied references being taken up, including the one from his work experience at Mans. On this second recruitment application occasion there is one application form from another local young person called Paul Jones which shows almost identical qualifications, with work experience at another very similar company to Mann’s, who was offered an interview but withdrew their application, and did not come along. Lindsay is seeking advice on how to respond to the questionnaire, what happens if it goes to Tribunal (including how to avoid it), and also advice on what needs to be done to prevent such claims in the future. The following report will discuss and also evaluate how the company should respond to allegations that it racially discriminated against an Asian candidate for one of its vacancies. Employment (previously also known as industrial) tribunals presently consider the legal implications of alleged unfair dismissals, and also the actions of employers that that have discriminated against potential as well as actual employees. In order to do this effectively Employment Tribunal have been given the necessary legal authority and power to investigate and then subsequently pass judgement on alleged cases of discriminatory recruitment practices as well as unfair dismissal. In the vast majority of alleged unfair recruitment or dismissal cases disputes or disagreements are brought to the attention of the relevant Employment Tribunal by potential or former employees who were not hired in the first place, or had their employment terminated at the behest of the accused employers. The legal arguments for making such claims would be thoroughly investigated in order to decide whether the rationality of employer’s acts or actions are more important than the fairness of the employee’s cases for unfair dismissal, or age, race, and sex discrimination. The company would have to provide evidence about its recruitment practices if the failed job applicant successfully took it to an Employment Tribunal or indeed to the Commission for Racial Equality. Employment law can be highly complicated area of the legal system, an area in which employers and their employees can often make claims as well as counter claims against each other. When the majority of present day employees commence their employment with their new employers they generally sign a contract of employment, a binding contract which sets out the legal rights as well as the legal duties of both employees and their new employers.1 However in this case the company did not hire a potential employee and could face a tribunal hearing due to its alleged race discrimination, whether it was deliberate or unintended.2 Further forms of evidence that can prove to be very relevant and thus useful to the members of the employment tribunal would almost certainly include the questionnaire that the company has been asked to complete by the Employment Tribunal investigating the claims of racial discrimination. The completed questionnaire can help to establish the innocence or the guilt of employers before, or at the meeting of the employment tribunal.3 As far as employment tribunals are concerned signed contracts of employment should list all the rights of employers to recruit, hire, and also fire staff for their business or organisation. On the other hand employees should have their employment conditions, their salary scales, and over all employment rights clear set out for them to examine before the contracts are signed. In cases such as this one when Employment Tribunals are looking into cases of alleged discrimination in the recruitment practices of employers’ copies of any recruitment guidelines that the company concerned use could become valuable evidence.4 Employment tribunals are also able to consider all of the changes to the original recruitment practices used by the employer, and if necessary assess whether such alterations to these practices are intentionally or inadvertently the cause of racial discrimination.5 The employment tribunal will consider all cases under the auspices of the Employment Act 1996 and the Employment Rights (Dispute Resolution) Act 1998. Employment tribunals have the power to award compensation, the formal re-instatement, or re-employment of all employees adjudged to have been unfairly dismissed. In practice the majority of potential former employees that win their employment tribunal cases for unfair dismissal opt for financial compensation rather than the full re-statement or the starting of a new job. Besides employers often feel loath to give such former employees their old jobs back.6 In the majority of race discrimination cases the employment tribunal will usually decide whether or not the employers involved in the case being adjudged to have acted rationally as well as legally when not hiring the candidates with best qualifications solely due to their race or their ethnicity.7 The members of employment tribunals would want to know or understand the reasons for employers making the decision not to hire somebody upon ethnicity or racial grounds. Rational reasons for employers not to hire candidates could include believing that people from ethnic minority groups are less likely to perform the job to a satisfactory standard.8 If employers are able to convince the members of the employment tribunal adjudging the cases of race discrimination that they are involved in that they made rational decisions to terminate their employees employment then they are more likely to win the case. Losing cases of alleged racial discrimination in recruitment can certainly prove to be expensive for employers that would have to pay compensation to the failed job applicants, and could receive unfavourable media coverage.9 Employment tribunals have to decide if employers made rational decisions to terminate employees employment in order to make a sound judgement as to whether or not the employers’ decision constituted unfair dismissal. Employers that acted rationally are more likely to be able to make a logical defence of their decisions than other employers that acted irrationally when allegedly being racist in their recruitment practices. The members of employment tribunals will establish whether or not employers acted rationally in dismissing their employees in order to assess that the employers were fair or unfair in their decision to hire or not to hire workers on the grounds of their ethnicity and racial identity.10 The employers conduct and the rationality or the irrationality of their acts are the focus of attention for the members of employment tribunals due to the perceived usefulness of such information when making judgements upon the validity of job applicants claims of racial discrimination. Employers if they know employment law well enough will avoid making their conduct appear to be unreasonable or irrational. Employers would claim that their conduct towards the employees prior, during and after the latter were dismissed was done legally and above board with the full requirements of employment law being strictly observed.11 Completing the questionnaire would probably demonstrate to an Employment Tribunal that the company did not act rationally when turning down the job application of the man seeking damages, or even eventual employment.12 Some reasons for dismissal can automatically considered for a claim of unfair dismissal, without the employee having to have worked for a minimum length of time or work a minimum number of hours per week. Employers have to strictly adhere to grievance and dismissal procedures to maximise the prospects of unfair dismissal case being successfully refuted at the employment tribunal stage. Employers that dismiss their employees who the correct grievance and dismissal procedures are more likely to convince employment tribunals that their conduct has been legally proper as well as being rational. Employers that follow all internal and statutory disciplinary and grievance procedures to the very letter in practice have little to fear from employment tribunals in race discrimination as well as unfair dismissal cases brought by their former employees. Employment tribunals understand that if employers strictly adhere to such procedures it would prove very difficult for former employees to win their cases for unfair dismissal. The experience of the majority of employment tribunals is that around 9 out of 10 claims for race discrimination in recruitment and unfair dismissal by former employees are not upheld with the employers winning their cases. The best advice for the company is to avoid going to an Employment Tribunal, as there is a strong possibility that they would lose the case.13 Situation Three – Ipswich Head Office Two months ago, a member of staff in the account office was accused of stealing money from the petty cash. There is a system of putting in Slips of paper noting when money has been taken to pay for items, which are then bought and the change and receipts are put back in the cash box. The money is used largely to buy small “one off” items of office equipment, such as scissors, and dictionaries, but also for the regular purchase of tea and coffee etc for the mid morning, lunchtime and afternoon breaks. Peggy who records the “ins” and “outs” of the cashbox in the petty cash box noticed that the amounts for tea, coffee and particularly milk and sugar had doubled over the past six months, yet there are no more staff and no obvious increase in frequency of drinks being made. She then kept an eye on the cash box and noted that Sally one of the accounts staff who had joined just over eleven months ago, seemed to be putting receipts in the box and taking money out, but that the supplies of the tea and coffee had remained unchanged. She pointed this out to her manager the Customer Accounts Manager, and he had also spent a week observing the cashbox withdrawals. He noted that Sally put in a receipt for tea, sugar, and milk from the Co-Op but that no items matching that appeared in the fridge or on the refreshment tray. A number of the receipts over the previous 6 months had been from the Co-Op. Sally’s best friend worked at the local Co-Op store. Consequently, he called Sally into his office and told her of his suspicions, suspended her from duty until the following Monday (just under a week) and then dismissed her. Sally appealed against the dismissal and the Chief Accountant reviewed the evidence and upheld his Managers dismissal action. Sally has now applied to the Employment Tribunal, claiming unfair dismissal. Advise Lindsay on what the legal position is for the company and what to do next. Assume that the company disciplinary policy was last reviewed in 1999, and consists of employees who are subject to disciplinary proceedings normally receiving 2 warnings (1 verbal, 1 written) before dismissal, having the right of appeal, but otherwise is very basic and sparse on detail on how managers should handle disciplinary matters. There are a whole host of circumstances in which former employees can go to an employment tribunal after being dismissed and gain an automatic hearing for unfair dismissal. The company needs to ensue that whenever possible that it is thoroughly prepared to defend its actions in front of an employment tribunal. In many respects it is logical for the members of employment tribunals to investigate whether or not the employers in every alleged case of unfair dismissal have conducted themselves in such a way as to automatically ensure that specific cases have to be heard by a tribunal. Basically employers that fail to keep to contracts of employment or fail to adhere to specific parts of employment law are liable to automatically have unfair dismissal cases heard by an employment tribunals. For instance, employers that dismiss their employees for reasons relating to ill health caused by pregnancy, the avoidance of granting maternity and paternity rights, the membership or otherwise of trade unions, as well as stopping health and safety representatives from doing their work properly. Employees are usually given the rights to carry out such activities or duties by specific pieces of legislation within employment law that goes above as well as beyond the right they are given within the framework of their contracts of employment.14 For instance, the rights of employees to be members of trade unions is set out in various employment laws that all employers should adhere to unless they have been particular legislative exception from the laws that all other employers have to follow to the letter. Employees are free to join trade unions, as well as free not to join them, whilst all workers have the legal right to have trade union representation during disciplinary and grievance procedures brought forward by their respective employers. The employers that allow their employees to have trade union representatives during such procedures are in essence protecting themselves from claims made against them of unfair dismissal. It is possible that trade union representatives can be witnesses that testify in favour of the employees that have represent although employers that conducted themselves with full propriety should have less to worry about in terms of the verdict reached by employment tribunals. Employers that change the conditions of employment for some if not all of their employees could potentially risk being referred to an employment tribunal if the revised terms of employment are particularly unfavourable towards their workers. For instance, extending the contracted hours of employment without prior consultation or fair warning could provide employees with the opportunities to claim constructive or unfair dismissal if the change in work hours make in increasingly difficult to carry on working for their employers.15 However, if employers are careful or astute in the way in which they suggest and then possibly implement contractual alterations they might avoid being accused of unfair dismissal in relation to their present as well as their former employees. Carefully worded or implemented changes in the employment terms and conditions of their employees means that the astute employers can either avoid having to going to an employment tribunal to answer to a case of unfair dismissal completely. Or in fact on the other hand the employers will be able to successfully refute all such allegations at any tribunal meetings subsequently held. 16 The members of employment tribunal will generally examine whether or not the employers being complained about they existing or their former employees have acted reasonably when altering the terms and conditions of employment available or offered to their employees. The more astute employers tend to consult their employees and trade union representatives well in advance of all significant alterations or changes of contracted terms and conditions of employment that could affect those workers both adversely or favourably. Often employers will make strategic management decisions which will make their businesses more profitable as well as more effective that mean changes to their employees terms and conditions of employment become desirable or necessary from the employers with their employees and in some situations trade union representatives.17 Employers that intend to, or actually alter the terms and conditions of employment for their employees are thus not always acting illegally or in ways that could allow their employees and trade union representatives to go to employment tribunals with claims of unfair dismissal. The employers that have adequately forewarned or consulted all of their employees and trade union representatives about major changes to the terms and conditions of employment are in many ways reducing the prospects of employment tribunals ruling in favour of the employees. All employers that know or strongly suspect that their employees could be adversely affected or discontented with major changes in their terms and conditions of employment would probably act carefully. Therefore the employers would be well advised to devise or offer incentives for continuing in employment as well as offering packages for employees that can no longer realistically work for the business or organisations making those changes.18 By offering incentives to their employees that choose to accept changes in the terms and conditions of the contract of employment, as well as offering redundancy and compensation packages to employees that cannot work under the new conditions the employers concerned are acting in a reasonable manner towards their workers. From the perspective of the employer behaving in such ways is both rational and reasonable with the advantages of reducing the risks of industrial action by their employees as well as minimising the risk of those employees taking them to the employment tribunal on the grounds of unfair dismissal. In the cases in which former employees succeed in being referred to an employment the members of the tribunals can consider tribunal the ways in which employers may or may not have compensated their former employees for leaving their employment. For the members of the employment tribunal will consider those employees that have offered incentives for those workers that chose to remain and packages for those workers that opted to leave the business or organisation in question will in fact realistically have a stronger defence against claims of unfair dismissal. That is because the employers have made conscious efforts to appear to be acting reasonably towards their employees by offering compromises, concessions and even compensation or redundancy payments after making the rational decision to alter the contracts of employment for their workforce.19 To a large extent it is probably easier for employers to convince the members of employment tribunal that they have acted rationally as well as reasonably when they have dismissed several or many of their employees rather than just single workers. If employers have terminated the employment of several employees then they can have greater scope to argue that their actions were rational and motivated by the needs of their business or organisation. On the other hand when employers dismiss or make redundant several or more of their employees they are more likely to have to make larger redundancy payments or pay in lieu of notice to reduce the chance of employees claiming unfair dismissal.20 Providing that employers pay their former employees the minimum required statutory amounts of redundancy pay and pay in lieu of notice they have a stronger chance of avoiding going before an employment tribunal in the first place. Even should former employees succeed in making a claim for unfair dismissal yet the employers are in a strong position to refute such claims as they have compensated those employees for a reasonable amount of severance payment. Besides if the former employees have worked for the employers for several years or more then the amount of redundancy pay or pay in lieu of notice they actually receive could substantially exceed the compensation they might be awarded by winning a case for unfair dismissal with the employment tribunal.21 Perhaps the circumstance in which the members of employment tribunals would want to establish whether or not employers acted rationally towards former employees in alleged cases of unfair dismissal that involve accusations of discriminatory behaviour. Dismissing former employees for gross misconduct, making redundancies to downsize businesses or organisations and changing the terms and conditions of contracts of employment are not as contentious as cases of unfair dismissal in which the employers have at first glance appeared to have discriminated against their former employees.22 The members of employment tribunals that adjudicate the case of unfair dismissal when employers have been alleged to have dismissed employees on the grounds of age, gender, race, disability, as well as orientation have to be especially careful to determine the rationality and the premeditation of the employers action.23 For employers it could be a serious setback to be adjudged to have unfairly dismissed former employees on the discriminatory grounds of age, gender, race, disability, and orientation. For they would have to pay damages to their former workers. Employees can also claim unfair dismissal upon the grounds that the discriminatory behaviour of their colleagues and not their employers made it untenable for them to continue working within the business or organisation concerned. All employees that have been the actual or alleged victims of discrimination and if they are forced to leave their employment have the right to claim unfair dismissal on the basis of constructive dismissal.24 However, because of the potentially serious repercussions of employers been found guilty of unfair dismissal on the grounds of discrimination the members of employment tribunals will want to be doubly sure that they have accurately assessed the primary motivations of the employers concerned. The employers accused of the unfair dismissal of their employers due to discrimination will generally claim that those workers were dismissed for other reasons such as lack of skills, poor performance being part of a general round of redundancies, as well as gross misconduct.25 Unless the employers have been careless enough to make discriminatory remarks or carry out biased actions in front of witnesses then it can be very difficult for employees to claim unfair dismissal due to discrimination. When employers have not made overly discriminatory comments or acted badly then the outcome of the employment tribunal investigation will depend on whether its members believe the employers more than their former employees. The way in which both employers and their former employees present themselves and their respective arguments to the employment tribunal can determine the final outcome of the unfair dismissal hearing.26 The employers that are able to convince the members of employment tribunals that their conduct was both honourable and legal are more likely to gain a favourable verdict. In the cases in which employment tribunals find in favour of the employees for unfair dismissal due to discrimination by the employers those employers are potentially liable for prosecution under the relevant anti-discrimination legislation. The vast majority of employers will certainly not want the employment tribunals’ unfavourable verdicts with regard to unfair dismissal to lead to their prosecution for discriminating behaviour just because their former employees have won the relevant unfair dismissal cases. Indeed for employers such prosecutions in the crown or magistrates courts for discriminatory behaviour would undoubtedly bring adverse publicity not to mention the distinct possibility of a rather hefty fine. As well as prosecution and financial penalties the unfavourable verdicts of both the civil courts and employment tribunals employers would certainly lead to the highly publicised tarnishing of their reputation as a business or organisation.27 Read More