Willful Disobedience by an Employee to the Orders - Essay Example

UK’s Employment Law – Case Study on Unfair Dismissal and Constructive Dismissal Question Advise Raj of any claim he may have A wilful disobedience by an employee to the orders or instructions of a superior officer will be considered to be a major offence, which can put an end to an employment contract. The term insubordination refers to constant or continuing deliberate denial to comply with an indirect or direct order which is rational in nature and being instructed with and by a proper authority. An employee has no legal remedy under the common law, if he has been summarily dismissed for grave insubordination or for gross misconduct1. In Laws v London Chronicle (Indicator Newspaper Ltd) it was held that an act of insubordination or disobedience or misconduct can warrant a summary dismissal only if it is demonstrated that the employee has renounced the terms of contract or one of its important conditions. Thus, in case of insubordination dismissal, it depends upon factors like status of the employee, the past track record of the employee and the social scenarios prevailed at that time. In Blyth v The Scottish Liberal Club (1983), wilful disobedience to adhere the superior’s order like a decline to attend meeting was regarded as insubordination2. In Wilson v Racher case, the defendant dismissed the gardener as there was heated argument over the gardener’s early departure on a previous Friday. In this case, there was no allegation of insolence or inefficiency and the Court of Appeal held that whether the attitude of the gardener was insubordinate and insulting to such magnitude as to be irreconcilable with the prolonging of the relationship of servant and master and hence, the dismissal was held to be unfair3. In Macari v Celtic Football and Athletic Co Ltd, it was held by the Court of Session that employees were not warranted to adhere with orders that had been issued in bad faith in scenarios where the employer was unfriendly with the employee. Further, the order issued to the employee in such a bad faith to the magnitude that it was obvious that the order had been issued with some ulterior motive and to mainly to harass or embarrass the employee4. Thus, in cases of insubordination, EAT (Employment Appellate Tribunal] will not just look at the order itself and the employee’s refusal to adhere the instruction of his employer but EAT will also give consideration to the reality and the actual background under which such order was issued. In Cavanagh v Dunnes Stores, an employee was dismissed as he declined to relocate from the Head office to a store in the ILAC centre though the employee had initially given his consent for relocation. EAT found that the dismissal was unfair despite the fact that the employee’s demeanour amounted to gross insubordination. In this case, the employee argued that he had been asked to relocate to a small office that too under the stairs which he claimed that being too small to lodge his files and staff. Further, the employee alleged that he was earlier functioned as the security manager on the country level and relocation will make him to look after the security management at a store level. Thus, EAT viewed that promises given by the management to allay the fear of the employee was short of what was anticipated and the promises given by the management did not address the employee’s worries5. In insubordination cases ,EAT will see whether the employee is given any warning in advance and whether the employee has been dismissed without having first carried out an effective and a fair disciplinary proceeding. Thus, in Cavanagh v Dunnes Stores case, it has been demonstrated that employee declined to carry out the order which resulted in the refusal to carry out a lawful instruction which justifies the dismissal, but the dismissal would be found to be unfair for the reason of not granting the right to have fair procedures for hearing. Thus, Cavanagh case is the best illustration of how EAT will be giving absolute significance, whether an employer is acting reasonably in insubordinate cases. Thus, even in cases of obvious gross insubordination, an employer can be held accountable for unfair dismissal if they fail to carry out a proper disciplinary proceeding. In Horrigan v Lewisham London Borough Council, an employee declined to work overtime though in the last 10 years, he used to work over time without any issue. The employee claimed that his employment contract did not mention that he was bound to do overtime. It was held that it was awkward to conceal behind the employment contract as a justification for declining to work overtime where he was working overtime in the last one decade6. In Fulham v Curragh Knitwear , it was held by EAT that failure on the part of an employee to adhere the reasonable instruction will be regarded more seriously if the insubordination leads to the bad outcome for the business of the employer , especially , if these result in bad financial outcomes7. Fundamentally, any wilful refusal or gross insubordination to adhere a realistic management order will result in gross misconduct. Nonetheless, so as to justify dismissal, an employer must be first fully certain that the order that is being given is in reality a reasonable one or not. If such order or instruction is not a reasonable one, then dismissal will be considered as unfair. Likewise, an employer can be able to validate an instant dismissal only if they have carried out an effective or a fair disciplinary process before arriving that choice to dismiss8. In the absence of any gross misdemeanour, the affected employee who was dismissed without any notice or due process of domestic enquiry can make a claim for wrongful dismissal under the common law along the relief available unfair dismissal under the Employment Rights Act. The Tribunal will look into whether the employee has been given any warning in advance and whether the employee has been dismissed without having first carried out an effective and fair disciplinary proceeding. In this case, Raj is working for AFSB for the last three years and has an excellent track record. Due to lateness of the train, he was late to the office about 20 minutes on a particular day. Sarah got furious and ordered Raj to clean everyone’s desk as on that day, one cleaner was on leave. Employing very strong language, Raj declines to obey with Sarah’s instructions on the basis that it is not part of his job to do such work. In case of summary dismissal for gross insubordination, Sarah and Glen while dismissing Raj have not taken into factors like status of the employee, the past track record of the Raj. ASFB should have clear regulations and norms of demeanour in the workplace, supported by a fair disciplinary procedure. The acts of gross misdemeanour include fraud or theft, gross negligence, physical assault, inability due to illegal drugs or alcohol and grave insubordination. In this case, these elements are absent. Applying the verdict held in Macari v Celtic Football and Athletic Co Ltd, it can be demonstrated that Sarah was seemed to be unfriendly with Raj and she issued the order with some ulterior motive and to mainly to harass or embarrass Raj. As held in Fulham v Curragh Knitwear, coming late to the office once in a blue moon cannot be regarded that it has brought a bad result to the business of AFSB and cannot be regarded as a case of insubordination, EAT (Employment Appellate Tribunal] will not just look at the order itself and the employee rejection to adhere the instruction but EAT will also give consideration to the reality and the actual background under which such order was issued. Hence, since Raj has completed 3 years service, he can apply to the employment tribunal to set aside his dismissal order and claim damages for unfair dismissal. Question 2 Advise Dennis of any claim he may have A constructive dismissal happens when the employee voluntarily terminates his employment contract but asserts that the employer’s demeanour offered him no other substitute but to resign. In other words, it is resignation of an employee due to pressure exerted or demeanour of the employer. The impact of this is that the employer has infringed the provisions of the employment contract. Before a claim of constructive dismissal is advanced, it has to be demonstrated that it is a fundamental infringement touching upon the founding stones of the employment contract. However, if there is continuing infringement on the part of the employee, then it may result in the constructive dismissal9. A dismissal can still be claimed by the employee as constructive even those instances where the employee complains that the actions’ of the employer had been continuous or snowballing , resulting in the infringement of implied conditions of the employment contract , even in the case of “ last straw” did not tantamount to an infringement of contract and despite the fact that there existed time intervals between the past incident of the employer demeanour and the last event, except that in totality , they resulted in a basic or fundamental infringement of the employment contract. It is to be noted that demoting an employee where there are instances sufficient for the dismissal will not be regarded as a constructive dismissal even when there is no provision in the employment contract which offers the employer the privilege to demote10. In Western Excavating (ECC) Ltd v Sharp, Lord Denning commented his opinion on constructive dismissal. If an employer is found to be guilty of demeanour which is a substantial infringement touching the fundamental of the employment contract, or which demonstrates that the employer no longer wishes to be accountable by one or more of the essential conditions of the contract, then, in such scenario, the employee is authorised to treat himself be relieved from any further performance. If he acts so, then, he puts an end to the employment contract by virtue of the demeanour of the employer. In such situation, it can be surmised that the employee has been constructively dismissed or forced to resign11. The above verdict offers three valid, significant conditions for any resignation by the employee which tantamount to a constructive dismissal. The employer through his demeanour is in real or in anticipatory infringement of the employment contract. Immediately after such a breach by the employer, employee should decide to resign. The employee has been compelled to resign due to the infringement by the employer12. In Woods v W M Car Services (Peterborough) Ltd, it was held that where an employer’s demeanour results in a constructive dismissal and this is the subject matter of the fact for the employment tribunal to decide13. In Tolson v Mixenden Community School , it was held that non-adherence of a grievance procedure , will not , by itself , pertinent in constructive dismissal claims , since it is the demeanour of the employer which is regarded as the crux of the issue.14 Under constructive dismissal, an employee who resigns from his job due to a tussle with his employer can claim damages for constructive dismissal by demonstrating that he has been constructively dismissed. A claimant should successfully demonstrate that they have left the job since the employer has made a repudiatory infringement of their contract. It is to be noted that such repudiatory infringement should be so grave that it put an end to the employment contract. Employers in many cases have successfully demonstrated that the employee left the job for a purpose other than the employer’s infringement and for instance, they can argue that the employee left the job in search of alternate jobs15. It is to be noted that for demonstrating a constructive dismissal, there need not have to be exceptional scenarios as held in Morrison v Amalgamated Transport & General Workers Union and in Polentarutti v Autocraft Ltd. As held in Cullent v Austin Rover Group Ltd, in Brown v Rolls Royce Ltd and Warrilow v Robert Walker Ltd , in deciding on the magnitude of fault , the ET(employment tribunals) employs a “ broad brush” stand to the complete employment track-record , thereby ignoring legalism to the maximum extent. The tribunal will give consideration that there was any culpability, including “bloddy-minded” demeanour by the employee that responsible for the dismissal16. In this case, Glen informs that if Dennis has a problem with Sarah, then, he is obviously not up to the job, and that he should leave’. On reading this e-mail, Dennis resigned the job. He is having every right to make his claim as constructive dismissal. As held in Western Excavating (ECC) Ltd v Sharp, in this case, there exists no such grave infringement by Dennis thereby touching upon the root of the employment contract. In Tolson v Mixenden Community School, it is the demeanour of Glen as he indirectly compelled Dennis to leave the job through his action which the employment tribunal will take into account. In this case, Dennis should successfully demonstrate that he left the job since the Glen has made a repudiatory infringement of their contract by compelling him to resign indirectly. As held in Cullent v Austin Rover Group Ltd, in Brown v Rolls Royce Ltd (1971) Ltd and in Warrilow v Robert Walker Ltd, the tribunal will look into the past track record of Dennis and also whether there is the absence of “bloody-minded” demeanour by Dennis for a constructive dismissal. Hence, it is advised that Dennis should approach the employment tribunal and should make a claim under constructive dismissal. Books Chander.P, Waud’s Employment Law: The Practice Guide for Human Resource Managers. (14th edition, Gogan Page Publishers 2003) Honeyball S, Honeyball and Bowers’ Textbook on Employment Law (12th edition, Oxford University Press 2012) Lockton D, Q&A Employment Law (8th edition, Routledge 2013) McAfee R B & Champagne P J, Effectively Managing Troublesome Employees (1st edition, Greenwood Publishing Group 1994)66 Moffat J, Employment Law (3rd edition, Oxford University Press 2011) Morris G D, Sonia McKay & Andrea Oates, Finance Director’s Handbook (5th edition, Elsevier 2009) Painter R & Holmes A, Cases and Materials on Employment Law (9th edition, Oxford University Press 2012) Selwyn N, Selwyn’s Law of Employment (17th edition, Oxford University Press2012) Silver I, Public Employee Discharge and Discipline (3rd edition, Aspen Publishers 2005) Smith I & Baker A, Smith & Wood’s Employment Law (11h edition, Oxford University Press 2010) Taylor S & Emir A, Employment Law: An Introduction (3rd edition, Oxford University Press 2012) Journal Articles Carty H, ‘Contract Theory and Employment Reality’ The Modern Law Review [1986] 49.2, 240-245 Forrest, H, ‘Political values in individual employment law’ [1980] Mod. L. Rev.43, 361. Paulson J, ‘Constructive dismissals in hospitality: perceived incidence and acceptance.’ International journal of hospitality & tourism administration [2005] 6.1, 11-26. Website Peninsulagrouplimited.com, ‘Gross-Insubordination-What Employers can Learn from Carlos.’ (3 February 2012) < http://www.peninsulagrouplimited.com/ie/gross-insubordination-what-employers-can-learn-from-carlos-tevez/> accessed 2 February 2014 List of Case Laws Blyth v The Scottish Liberal Club (1983) Brown v Rolls Royce Ltd (1971) Ltd [1977] ITR 382, EAT Cavanagh v Dunnes Stores UD 820/1994 Cullent v Austin Rover Group Ltd, 24 April 1986, EAT, Fulham v Curragh Knitwear (UD 76/1978) Horrigan v Lewisham London Borough Council [1978] ICR 15 Laws v London Chronicle (Indicator Newspaper Ltd) (1959) Macari v Celtic Football and Athletic Co Ltd [1999] IRLR 787 Morrison v Amalgamated Transport & General Workers Union [1989] IRLR 259, EAT Polentarutti v Autocraft Ltd [1991] ICR 757, EAT. Tolson v Mixenden Community School [2003] IRLR 842, [2003] AII ER (D) 312 (Oct), EAT, Warrilow v Robert Walker Ltd [1984] IRLR 304, EAT Western Excavating (ECC) Ltd v Sharp (1978) Wilson v Racher (1974) Woods v W M Car Services (Peterborough) Ltd [1981] ICR 666 Read More