Employment and Discrimination Law - Essay Example

Introduction Business enterprises are the major drivers of economies in all parts of the world and their conducts are regulated by laws which are putin place to govern them. All these firms are not able to run without the input of the employers and the employees who work hand in hand in ensuring the continued survival of such enterprises. There are issues that arise in the course of business that in some cases work against the employees and sometimes the employers. For continued business operations, mechanisms are therefore needed to be put in place to control and govern the relationship between the two parties in ensuring that the world economy and the living standards of individuals are not affected. These laws are called the employment laws and they have proved effective in enhancing proper business conduct within the business world. Some of these laws which have been in place include those that govern employee dismissal, child labour, employee benefits and labour contracts among other contracts and their applications in various business enterprises have worked well in ensuring the well being of both the employers and their employees. ANSWER 1 In the course of business conduct, employee - employer relationship is crucial in determining the success of each of the two parties in the business world. However, sometimes achieving a cordial relationship becomes impossible with the eruption of personal issues that come in a day to day basis. This has sometimes led to discrimination and in this case it is the employee who suffers the brunt sometimes leaving the employer to go scot-free after committing some unfavourable and inhumane acts against his/her employee. The case of Anne is a similar one where she is forced to unfairly suffer the consequences of being in bad terms with her boss. Employer retaliation, like in Anne's case is an aspect of employment law in which a lot of emphasis has been put and attorneys have had to defend their clients in regular basis under such circumstances. As an attorney, I would consider Anne's case as a solid one and which she is capable of winning should she press legal charges against her employer. (Robert Hill, Nick Dent and Adam Lambert: Labour and Employment: United Kingdom: Associative Discrimination). Also According to The ACAS statutory Code of Practice on discipline and grievance, the proper procedure for disciplining Anne would not put her career at risk but to hold a meeting with her and discuss the issues. Her boss would be recommended to express his grievances directly to Anne after which he would make clear his decision to give poor reference to Anne which according to the law is not encouraged. In dealing with such a case, it is important to consider whether Anne's employer informed her of her employment rights as postulated in the labour law. This law which is concerned with the rights of employers demands that all employers should take charge and sensitize their employees considering the rights which they hold as workers in their workplace. Freedom from retaliation is one of the major subjects which are dealt with in this law. In a case whereby the employer had not informed Anne and maybe other employers of their rights as his employers, Anne should be able to sue him of that as the first offence committed against her by her employer. Anne would then go ahead and sue Jim, her boss for the offence of hindering her from exploring and obtaining other employment opportunities on grounds of unfounded accusations (Office of Public Sector Information (united kingdom) Employment Rights Act 1996, chapter 18). Jim has definitely committed an offence against Anne. With regard to the employment and labour law, Anne should seek legal redress since as an employees and a human being for that matter, she has her rights regarding the choice of how she relates with other individuals either within or without her office environment. In order to establish a concrete case against the crime of employer retaliation which Jim committed against her, Anne should be able to offer solid information considering how her rights as a worker were violated by Jim. First, she should be able to prove the fact that she was involved in a statutorily protected activity. She should also be able to prove to the courts that she had always performed her duties in accordance with her employer's expectations. In such a case, Anne would be able to prove herself by inviting witnesses who would comprise of parents and other workers who commended her conduct within the working environment. The other issue which requires the observation of proper care is that concerned with establishing that Jim's actions are capable of causing her both emotional and material loss and/or pain. The fact that Jim wrote her a bad recommendation deterred Anne from getting employment from the place she had applied. Also with the kind of relationship she has with Jim, it is unlikely that she will be able to work under him any more. This leaves Anne jobless and without any means of survival, she will not be able to meet her material needs and this will ultimately lead to both emotional and material suffering. The fourth factor that should be considered in establishing this case is to prove that the employer treated her in a less humane manner. As a human being, Anne was entitled to error and falling out with Jim does not necessarily mean that she was the one who wronged him. The case would be the other way round. Blocking her paths to employment is an inhuman and unfavourable treatment on the part of Anne. The poor recommendation did not just deprive her of a means of financial survival but was also tantamount to a damaged reputation. The law of the land is against damaging other individual's reputation especially basing on unfounded allegations. If Anne is successful in proving all these allegations to the case, Jim, the school head will be coerced to undo his damage and will also be charged with criminal action under the adverse employment. Anne should also consider the time factor as the evidence will probably show out if she files the case immediately. Warning Anne of some adverse effects in case the case fails should also be a matter to be considered as it may cause her more losses should she be unable to prove her case. ANSWER 2 Employee dismissal is one of the matters that have been given great consideration within the employment and labour law. Because of the delicate nature of this issue, employers should be very careful in dealing with it should the need arise in the course of doing business. It is true that, in the United Kingdom, an employer is allowed to fire an employee at any moment as long as proper legal procedures are followed in the process. Employers should therefore ensure that the process is undertaken for exclusively the right reasons and within the provisions of the law. Fair dismissal of employees can be undertaken under circumstances where the employer has given notice to the employee or the employee has breached a sensitive rule with regard to legal requirement and the formal rules that are put in place within the work place. According to the constitution of the United Kingdom and as postulated in Act of 1996, the notice of dismissal should be issued following a certain recommended criteria. For example, for those continuously employed for less than four weeks, a notice of not less than 24 hours is recommended and in Aileen's case, where she had worked continuously for more than one year, a notice of not less than one week is recommended. (Employment solicitors.co.uk: your online guide to UK employment) Unfair dismissal relates to incidences where employers terminate employees terms of service before the end of the agreed time and in a manner which is not justified by the law. The case under which Aileen's case falls under is that of wrongful dismissal whereby the employer has dismissed her without the issue of any prior notice. The fact that Aileen had been warned of her conduct before does not necessarily equal to a notice of termination of contract. Such cases are presented to and dealt with under the employment tribunal. In order to successfully claim that she was unfairly dismissed, Aileen will have to take proper considerations regarding the following matters. She must have worked without a break for her employer for at least a period of one year. Aileen will obviously pass that test since in her case, it is stated that she has worked for the call centre for a period of four years and this is evidently more than a one year period which qualifies an individual to apply for such a case. Though Aileen's evidence of unfair treatment and dismissal are not in any way related to the automatically unfair cases like pregnancy and lodging of complaints, Aileen can still have a chance to prove to the tribunal that her situation is a case of unfair dismissal from work; a treatment which equals the infringement of employment rights. The period of notice of dismissal that Aileen was given was unfair as the boss fired her instantly instead of giving her the one week period which is recommended by the law of the land (Employment solicitors.co.uk: your online guide to UK employment). The fact that she was not involved in any dishonest conduct like fraud within the firm coupled with her ability to work properly within the centre will be reason enough to favour her when it comes to coming up with a verdict. Aileen should also ensure that she had no legal issues concerning her conduct inside and outside the office; for example, illegal citizenship. Such cases may only help to worsen her already bad situation and there would be no other loopholes to help her get out of the hooks of the law. It will however be unfortunate if the employer is able to prove beyond any reasonable doubt that he had a concrete reason for dismissing Aileen from work. This would work to the advantage of the employee if he proves that the instances in which he had warned Aileen of her conduct were accompanied by a vow to terminate her contract. Also in a case where Aileen's conduct caused losses to the firm, this would only help to incriminate Aileen. The court will however have to prove that legal and professional procedures were followed in the process of her dismissal. In the case where Aileen gains victory in the case and the Employment Tribunal makes a verdict deciding that her dismissal was unfair, Jim may be advised to re-employ her or most probably offer her a compensation consisting of a compensatory award based on the loss incurred by Eileen plus a basic award. Such kinds of compensation may have a value of over 50,000. (Employment solicitors.co.uk: your online guide to UK employment) ANSWER 3 Most of the stories which individuals get to hear in the work place mainly relate to the rights of employees. However, employers have rights too and part of this includes the rights to hire and fire their employees. Some of the cases in which employers are justified to fire employees may include cases like substandard performance, insubordination and poor work habits. Firing should however not be instant and unpredicted. The employer should first offer feedback and give the employee chances of improvement especially in cases of underperformance of newly hired workers. The breach of contract is sometimes a cause of most employees' termination some of which include the leakage of secret company information to the public or the government. The employee is also put in a dilemma in cases where the issue of ethics comes into play. In Harry's case, there are conflicts considering the need to be true to the company with which he works with and also the desire to work in an ethical manner. Considering that no prior notice had been issued to Harry informing him of the dismissal from his work, Harry would have a solid case against his employer. His dismissal can also be regarded as unfair considering that he blew a whistle on a supposed misconduct of the company which was funding them. As an external whistle blower who acted ethically in trying to prevent unwarranted deals from within the company he was associated with, he is entitled to protection by the law of the United Kingdom. In addition, if it was found that he was right in his statement, he would be eligible to file a case against his employer for an unfair dismissal or retaliation. This would a bold step and he would have in fact helped in dealing with crime in work places and he would also be rewarded in the case where the accusation was found to be true. (Office of Public Sector Information (United Kingdom) Employment Rights Act 1996, Chapter 18) Harry is also eligible to protection as an employer since despite issuing a misstatement, he had acted in good faith with an aim to putting an end to corrupt activities from taking place within the 'You Have Mail (YHM') enterprise. The fact that he acted morally would give him an advantage in such a case. (Office of Public Sector Information (United Kingdom) Employment Rights Act 1996, Chapter 18) Despite acting in good faith, Harry's case may be complicated by the fact that he put the You Have Mails enterprise's reputation at stake. The entire existence and prosperity of the company majorly depended on the good reputation that they had before the allegations forwarded by Harry came up. The damage which most probably will be irreparable would put the happiness of the owners and the employees of the You Have Mail enterprise at stake as it may be hard for the company to negotiate deals at the same level they did before. Employee future career lives may also be at risk here. The fact that the You Have Mail Company's reputation may be distorted means that the company's profit level may be compromised and it may be forced to lay off some of the employees. Coming from an enterprise with a somehow tainted image also means that the employees may never be able to be properly employed in the future. (ACAS, April 2009. Disciplinary and Grievance Procedures) According to The ACAS statutory Code of Practice on discipline and grievance, dealing with Harry's case will require that he appeals to his employer after which he can go to the higher authority which is the labour tribunal if he does not succeed in expressing his grievance of unfair dismissal to the employer. The tribunal will then be able to decide the extent to which Harry's actions would be justified or whether his dismissal by the employer was executed in the right manner. (Employeedismissal.net (2009) Employee Dismissal; Facts about employee dismissal for employers) ANSWER FOUR One of the main issues which are dealt with in labour laws concern the process of signing contracts between the employer and the potential employee. This is important in ensuring that neither of the two goes against the agreements that were made and that legal steps can be taken in cases where either party goes against the signed agreement. Contracts are also powerful tools which have been used in ensuring that both employers and their employees receive proper treatments and that the employees are able to access benefits and also work under favourable conditions. According to the labour act, under the occupational health and safety law, it is required that workers are provided with healthy and environmentally safe conditions when in the work place. The fact that Sanjay does not access any sick pay from the company or pension is not favourable since he is not assured of any form of security, whether social, emotional, physical or financial. The fact that income tax is deducted from his salary means that he should receive benefits like all the other employees It is however Sanjay's choice that he has to face such kind of treatment as he also signed a contract agreeing to such conditions. He is also favoured considering that he does not have to follow the disciplinary procedure that other workers are exposed to. The length of time in which he works is also too long and it is also unfair that he is not allowed to miss work any day and has to pay dearly for doing so. This is an inhuman treatment since as a human being, he is vulnerable to face uncertainties like falling sick or even being in need of attending to some serious family issues. The fact that he is an independent contractor however exposes him to such a situation and he cannot claim right to the same benefits that other employees at KarpetKleen Ltd are entitled to. He is in a way self employed and is therefore responsible for the decisions that he makes concerning how he is supposed to work for the company. Getting employee' rights on the part of these independent contractors is very complex since drawing the lines between their status as employees and that of employers is very complex. However, if a contractor wants to get access to the employee rights enjoyed by other employers, it is advisable that they change their status to permanent employees within the companies they are attached to. It is therefore possible for Sanjay to achieve this if only he can make agreements with the management of the company. As a permanent employee, he will be able to work under the same conditions as the rest of the employers and also be able to have access to the same benefits and rights that the rest of the employees are entitled to. Conclusion Laws that govern employers' relationship with their employees have been effective in ensuring good business relationships between them. Because of the great concerns for the welfare of employees, various organizations have advocated for the maintenance of employee rights within the whole world. The implementation of these laws has been to some extent effective especially in the developed countries and has helped enhance the work environment of citizens. Attempts to embrace the culture have also been made in developing countries. However in some areas, issues of illegal employment practices like child labour are still witnessed and this calls for stringent measures in dealing with them. References Employeedismissal.net (2009) Employee Dismissal; Facts about employee dismissal for employers Office of Public Sector Information (2009) Employment Rights Act 1996 1996 Chapter 18 Hill, R, Dent, N and Lambert, a (14 May 2009), Labour and Employment: United Kingdom: Associative Discrimination Employment solicitors.co.uk: your online guide to UK employment ACAS (2009) April 2009. Disciplinary and Grievance Procedures, Norwich: TSO Information and Publishing Solutions Read More