Flexicare Employment Problems - Case Study Example

Flexi-care Case Study February 25, 2007 Background Flexi-care employees' current employment situation gives them very few options on how to lawfully raise their issues to Flexi-care management or to any government body. There are a lot of limitations on the employees basically because they are not unionised. This fact alone gives Flexi-care management the upper hand in handling the situation. The terms of a contract, once agreed upon, are binding on both parties and can only be changed with the consent of the parties involved. Without such consent, it is not possible for a party to unilaterally vary the terms and conditions, unless the contracts contain variation clauses. In Wandsworth London Borough Council v D'Silva (1998, IRLR 193) the employer altered a code of practice in relation to sickness. The Court of Appeal found that the code was not part of the contract but was simply meant to lay down good practice for managers. The language of the provisions in question was found not to provide an appropriate foundation on which to base contractual rights. However, in the absence of variation clauses, Flexi-care may still contest "consent" by either any of the following: there was an express agreement between both parties; there was implied agreement through the conduct of the employees; termination of the existing contract and enforcement of re-employment under new contract. Express agreement refers to a voluntary agreement between Flexi-care management and the employees, whereas implied agreement means that the employees have consented to such changes by abiding by it for a long period prior to raising their concerns. As such, employees must ensure that they do not agree on any of the proposed contract variation during the upcoming meeting since express agreement may be done either verbally or in writing, and neither should they allow much longer time to seek for resolutions to their disputes. Meanwhile, should Flexi-care management try to vary the contract terms but cannot get agreement from its employees, they can always terminate the contract and offer new contracts with the new terms and conditions. In Scott v Richardson (EAT April 2005 0074/04), the claimant was dismissed for refusing to accept a variation to their contract. The EAT said that the test was whether the employer reasonably believed that the changes to the contract were advantageous and it was not necessary for the employer to prove such advantages. This case highlights the low threshold that the employer must meet for the 'some other substantial reason' test for dismissal. 2. Options 3. Citing The Information and Consultation of Employees Regulations 2004 The most feasible option for Flexi-care employees is to seek for a consultation by citing the Information and Consultation of Employees Regulations 2004 (The Information and Consultation of Employees Regulations 2004). Employee representatives must begin the process by requesting for data from Flexi-care management regarding the total number of employees in the company. Under Part II, Section 5 (Employee Numbers And Entitlement To Data) of the Information and Consultation of Employees Regulations 2004, "an employee or an employee representative may request data from the employer for the purpose of determining the number of people employed by the employer's undertaking". This data shall be the basis in determining how many employees constitute 10% of the total population, since as stated in the same Regulation, Under Part III Section 5 (Negotiations), "an employee request is not a valid unless it consists of'a single request made by at least 10% of the employees concerned; or unless it is a number of separate requests made on the same or different days within a period of six months by employees which when taken together totals to at least 10% of the employees. Requests for consultation must be forwarded by the employees either to the Flexi-care management or to the Central Arbitration Committee (CAC). The CAC is a permanent independent body with statutory powers whose main function is to adjudicate on applications relating to the statutory recognision and derecognision of trade unions for collective bargaining purposes. The CAC has a statutory role in determining disputes between trade unions and employers over the disclosure of information for collective bargaining purposes, and in resolving applications and complaints under various regulations, which includes the Information and Consultation Regulations 2004 (What is the Central Arbitration Committee 2004) Flexi-care management may conduct necessary steps to validate the request by giving out ballots to the employees to confirm if majority of the employees indeed support the request for consultation. If a ballot does take place, the request to establish information and consultation arrangements must be supported by a majority of those voting and 40% of those entitled to vote to be successful. If either of those criteria is not met, the request is unsuccessful and the employees cannot make another request for three years (A Guide for Employers and Employees to the role of the Central Arbitration Committee 2004). Upon confirmation of validity, Flexi-care management must then act on it by recognizing employee representatives with whom they can conduct consultation in behalf of the entire workforce. Through this consultation, an exchange of views and establishment of a dialogue between the employees and the employer must occur. According to paragraph 19 of the article A Guide for Employers and Employees to the role of the Central Arbitration Committee, the employer and negotiating employees have six months to arrive at an agreement. The six-month period starts three months after the employee receives a valid request from its employees for information and consultation arrangements or three months after the date on which the employer decides to initiate negotiations itself. The six-month period can be extended, depending on the agreement between the employer and the employees. By law, this is the best possible way that the employees could air their grievances while avoiding summary dismissal as being threatened by the management. 4. The Call for an Industrial Action Flexi-care employees' call for an industrial action may prove not to be a wise decision. Flexi-care's non recognision of the existence of a Trade Union within the company puts the employees in a disadvantageous position because the basic legal actions they are entitled to requires the employer's acknowledgement of a lawful and duly recognised Trade Union. The employees' plan to hold a strike would definitely backfire because is not considered to be a Protected Industrial Action. A strike is considered a Protected Industrial Action only if an employee is induced to take it by his union and if the union complies with the legal requirements governing the organisation of industrial action (What Is Protected Industrial Action' 2007). The law protects employees performing such industrial action up to the 12th week of the strike, and they may not be dismissed within this period. Employees partaking in a strike which is not considered to be a Protected Industrial Action may be dismissed on the grounds of breach of contract. In this case, since Flexi-care has never recognised the existence of a union, employees participating in the strike would not have any claim unfair dismissal should Flexi-care decide to terminate their employment following the conduct of a strike (Trade Union and Labour Relations Act 1992 ). 5. Four Other Options That May Not Work for Flexi-care employees Stand and Sue: Flexi-care employees may continue to work under protest on the grounds that Flexi-care committed a breach of contract referring to the new terms being forcefully implemented. However, the employees should be explicit in declaring their non-conformity of the new rules. In the case of Henry & Others v London General Transport Services 2002, the Court of Appeal found that 'it would be extremely difficult to conclude other than that the employees had accepted the revised terms' where the employees had initially presented two petitions against the changes, and then worked under those terms for two years before claiming for unlawful deductions (EAT April 2005 1397/97). Claim Constructive Dismissal: Flexi-care employees, when threatened to accept the changes in the policy, may resign and claim for constructive dismissal by virtue of Flexi-care's changing of policies without proper consultation with the employees (Employment Law 2006). However, Flexi-care management may always prove that such change is a result of a "genuine business need". Flexi-care employees may counter that the management did not go through a reasonable process of seeking agreement and consultation with the employees, but tribunals do not usually interfere with business decisions, therefore putting the employees on weaker grounds. Remain in employment and claim for unfair dismissal: Flexi-care management's option to terminate the existing and contract and replace it with the new policy may equip an employee to file for Unfair Dismissal even if he is still currently employed with the company. However, if the employer can establish a fair reason for the changes and prove that they have conducted employee consultation, such unfair dismissal claim may be prove to be unsuccessful. Refuse to change: Refusal to change may be sanctioned through a dismissal on the grounds of breach of contract because of the employees not performing the tasks as stipulated therein. The employee, in return may file for unfair dismissal. However, such actions would not directly address the issue and may even result to greater damage on the part of the employee, as this move might result to the loss of his job and the rights to a fair compensation - the very same things that he is fighting for. List of References A Guide for Employers and Employees to the role of the Central Arbitration Committee 2004. Available from [February 28, 2007] The Information and Consultation of Employees Regulations 2004. Available from [February 25, 2007] Trade Union and Labour Relations Consolidation Act 1992, c 52 1992. Available from [February 22, 2007] What is Protected Industrial Action, 2007. Available from [February 25, 2007] What is the Central Arbitration Committee 2004. Available from [February 25, 2007] Read More