Employment Law - Unfair Dismissal and Wrongful Dismissal - Assignment Example

?Memorandum of Advice The Company Secretary, Computer Sales and Service organization, Midlands XXX, HRM 28 Nov This report evaluates the strengths and weaknesses of the company’s case in respect of unfair dismissal issues of its employees, namely, Janice Hall and Kelsey Fields, and provides recommendations to deal with the problem. Introduction Two female employees of the company, namely, Janice Hall and Kelsey Fields have approached the Employment Tribunal with claims of unfair dismissal and wrongful dismissal after they were charged and dismissed by John Biggins, the Warehouse manager, after he had found an unopened new hard disk drive, in their jointly held locker. Subsequently, these employees had approached the Managing Director, who confirmed their dismissal, without making any further investigations into the case. He approved the dismissal by simply going through the available paper work relating to the issue. Thereafter, the company had received an ETI claim form and ET3 response form from the Employment Tribunal. Several basic and radical changes were effected to the law pertaining to workplace grievance and disciplinary issues, by the Employment Act 2002. These changes were implemented by the Employment Act 2002 (Dispute Resolution) Regulations 2004, and became effective from 1 October 2004 (Duncan, 2005). The advantage of employing the rules and procedures for addressing disciplinary and grievance issues lies in the fact this promotes fairness and transparency. Such rules and procedures have to be stipulated in a written and unambiguous manner. The development of rules and procedures should involve the employees or their representatives (Code of Practice 1 ACAS Disciplinary and Grievance Procedures, 2009). Analysis Under the present statutory provisions, in order to qualify for protection against unfair dismissal, an employee must have completed at least one year of continuous service with the same employer, if he had been appointed prior to 6 April 2012. For those appointed after this date, the qualifying period is 2 years. The sick leave period, holiday period and maternity leave period are also included in the period of service of the employee in the company (Compact Law, 2012). In our present problem, Janice Hall had been working with the company for more than a year. Hence, she is eligible for making a claim of unfair dismissal under the provisions of the Employment Rights Act. However, Kelsey Fields cannot make a claim for unfair dismissal, as she had been working for the company for less than a year. Although, employers are not required to adhere to any statutory disciplinary procedure, the Advisory, Conciliation and Arbitration Service (ACAS) code of practice on disciplinary and grievance procedures that specify the fundamental principles relating to a fair procedure. An unreasonable failure by an employer to adhere to the provisions of this code can cause the tribunal to enhance the compensation awarded by it to the extent of even 25% (Employment Law Advice, 2011). An employee is entitled to be provided with written notice of dismissal, provided that employee has worked for at least one year in the business establishment of that employer. This is with regard to employees who had commenced work prior to 6 April 2012. However, with regard to employees who had started to work after this date, they should have worked for at least two years (Citizens Advice Guide, 2012). Although Janice had worked for 2 years, no notice of dismissal had been served upon her by the company. This constitutes a gross violation of the statutory fair procedures by the company. At the very least, employers, while addressing disciplinary issues, should carry the required investigations for establishing the facts; convey to the employees the root cause of the problem; conduct a meeting to enable employees to present their case; permit the employee to be accompanied at the meeting; and allow the employee to appeal the decision. In addition, there should be no unreasonable delay and the process should be conducted in a consistent manner (Employment Law Advice, 2011). In our problem, the warehouse manager, failed to correctly follow the statutory discipline procedures. He did not give the employees any opportunity to be accompanied by other employees or trade union members, as per the guidelines provided by the ACAS Code of Practice, during the hearing. In addition, he did not conduct the investigations properly; because, one of the keys of the locker, which was held by Janice and Kelsey jointly, had been lost, and the warehouse manager should have made a proper enquiry regarding the missing key, prior to making allegations against employees who had been consistently maintaining a good record with the company. Contemporary legislation permits an employee to be accompanied by a fellow employee or an official of the trade union during the hearing. With the exception of cases involving potential gross misconduct, a fair warning procedure has to be adopted. This should comprise of a verbal warning, written warning, final written warning and dismissal. In the absence of such procedure being followed, the employment tribunal may deem the dismissal to be unfair, even if the dismissal had otherwise been fair. The UK law permits employees, who have at least a year’s service with that employer, to claim unfair dismissal (Birkinshaw & Fairclough, 2001). Fair warning procedures were not adopted by the warehouse manager, with respect to the alleged misconduct of the female employees. They were not given any verbal or written warnings in respect of their conduct, earlier. This shows the unfair treatment accorded by the warehouse manager against these employees. The following case law reveals the attitude of the courts in deciding unfair dismissal issues against companies. In Weddell & Co Ltd v Tepper, the defendant was a salesman who was accused of committing a fraud, while grading meat. The employment tribunal held that Tepper had been dismissed unfairly, as the employer had taken a hasty decision (Weddell (W) & Co Ltd v Tepper , 1980). Similarly, in our problem, the company seemed to have been taken a hasty decision, without following the fair procedures prescribed by the law. As such, in William Hill Organisations Ltd v (1) Miss T M Steele (2) Miss W McNeill, two shop assistants were dismissed by their employer on allegations of having committed fraud. The employment tribunal determined that the investigation had been defective, which rendered it unfair. The tribunal also opined that the employer’s allegation of guilt against these employees was unreasonable. The employer appealed against this decision in the EAT, which upheld the decision of the employment tribunal and rejected the appeal (William Hill Organisations Ltd v (1) Miss T M Steele (2) Miss W McNeill , 2008). Similarly, in our problem, the alleged misconduct of the employees was baseless and devoid of any substantial evidence, what so ever. In Associated Society of Locomotive Engineers and Firemen v Brady, the EAT ruled that if the employer’s antagonism was the cause for the dismissal of the employee. As a result, the dismissed employee was successful in a claim of unfair dismissal against the employer (Associated Society of Locomotive Engineers and Firemen v Brady, 2006). Moreover, in British Home Stores v Burchell, the EAT held that dismissal would be unjustified, if the situation was not examined thoroughly during suspicion of misconduct (British Home Stores v Burchell, 1980). Moreover, in accordance with the ruling in Dunn & Anor v AAH Limited, when the misconduct of an employee is serious enough to undermine the confidence and trust that constitute the basis of the employment contract, then the employer can terminate the contract with that employee (Dunn & Anor v AAH Limited, 2010). In our present problem, the dismissal of the employees by the company without following the statutory procedures renders it liable for unfair or wrongful dismissal claims by these employees. Although, the qualifying service for claiming unfair dismissal for those who had been employed prior to 6 April 2012 is 1 year, and for those employed after this date is 2 years; dismissed employees can claim compensation if they can claim under a heading that is independent of completion of qualifying service (emplaw, 2012). In our problem, although Kelsey had not completed one year of service with the company, she can make a claim for compensation against the company for dismissing her without due procedures or reasonable cause. On occasion, a mediator or independent third party may help in resolving the grievance or disciplinary issue. This constitutes the process of mediation, which is voluntary. In this process, the mediator helps the disputants to arrive at an agreement. However, no agreement can emanate from the mediator, and the agreement, per se, has to come forth from the disputants (ACAS, n.d., p. 7). Conclusions Since Janice and Kelsey were dismissed from the company unfairly, the company would be held liable for claims by both the employees. Since Janice had worked for two years she can make a claim for unfair dismissal under the provisions of employment law. As the company did not follow the statutory disciplinary procedures, it would be liable for a claim of wrongful dismissal by Kelsey. She had not been provided with a dismissal notice. Moreover, Janice also had not provided with a dismissal notice, which is mandatory for a fair dismissal under the employment law. The company had already received the claim forms from the Employment Tribunal, as both the dismissed employees approached the court for justice. Recommendations The company should create up – to – date policies for its human resource management, since these are lacking in its procedures. In addition, the company should make provisions for the latest disciplinary and grievance procedures, as they are following obsolete practices, which they had downloaded from a government website. Moreover, no proper training procedures had been adopted by the company. In addition, many decisions were taken by the line managers without proper guidance from the higher authorities. This is not acceptable, and does not promote the wellbeing of the company. As an alternative to the court proceedings, the company can seek the appointment of a mediator for resolving the problem, without exposing itself to the court procedures. Consequently, the company may reinstate the dismissed employees to their original posts or for some other suitable job, in the company. Moreover, the company has to make good all the dues that it owes them, as per the law, on the date of their dismissal. TO: The Company Secretary, Computer Sales and Service organization, Midlands FROM: XXX, HRM DATE: 28 Nov 2012 Subject: This report assesses the position of the company with respect to the termination of employment or deployment issues of its sales employee, namely, Robert Keys who met with an accident and became disabled, and provides recommendations to deal with the problem. Introduction Robert Keys, a top sales professional of the company had met with a car accident and injured his leg. This made it difficult for him to manage his tasks in the company, in the same manner as before. Consequently, it is to be analysed whether the company can terminate the employment of Robert Keys, as it had become burdensome for the company, or whether the company had any options for his deployment. With the combination of the Employment Act 2002 and the Employment act 2002 (Dispute Resolution) Regulations 2004, it has become mandatory for employers to adhere to certain minimum standards, in the context of dismissal and disciplinary procedures. This development has been in force from 1 October 2004. These rules stipulate the sanctions to be applied against an employer who fails to comply with the specified procedures (emplaw , 2012). Analysis It is prohibited by the Disability Discrimination Act 1995, to discriminate against the disabled; with regard to the supply of goods, facilities, services, and in the context of premises. As a result, any firm that supervises some premises cannot act in a discriminatory manner, with respect to a disabled occupant of the premises. In other words, it is precluded from evicting the occupant or causing a detriment to that person. The very same principle applies to the work environment. Thus, in Fareham College Corporation v Walters, the employment tribunal held that the employer was liable, as reasonable adjustments had not been made to the workplace, in order to accommodate a disabled employee. Moreover, the employment tribunal was of the considered opinion that the employer had discriminated against the employee on the basis of that person’s disability. The employer appealed against this decision. However, the Employment Appeal Tribunal (EAT) held that reasonable adjustments had not been made to the workplace by the employer (Fareham College Corporation v Walters , 2009). In our present problem, Robert Keys, as an employee of the company cannot be discriminated on the grounds of his disability. As per the above cited decision, the company has to make reasonable adjustments to accommodate Robert Keys, who was seriously injured in an accident, while driving. The employment law provides that every employee is entitled to receive the full salary. This was the decision in Mennell v Newall. Consequently, employers cannot make unlawful and unauthorised deductions from the salary of their employees (Mennell v Newell and Wright (Transport Contractors) Limited , 1997). In our problem, the company paid Robert only half of the salary, as sick pay, three months after the accident. This was unlawful on the part of the company, as it cannot deduct amounts from the salary, without adhering to the statutory sick pay provisions. The company has to provide statutory sick pay, as enjoined in the relevant law. If it fails to do so, it will be liable for unlawful deductions. In general, employees are to be provided with statutory sick pay, whenever they are absent from work on medical grounds. Moreover, some employees could be provided with occupational sick pay by their employer. However, this depends on their employment contract. During a leave of absence for having sustained an injury, the injured employee has to be provided with statutory sick pay. Furthermore, benefits could be claimed, with the objective of increasing the income, whenever the employee sustains serious injury. In such cases, the benefits will continue, even after the injured employee resumes work (Citizens Advice Guide, 2012). In SEMA UK Ltd v Haddock, the defendant had been working for the plaintiff as a computer engineer and sales manager from the year 1983. By the year 1997, he was being paid a substantial salary with several perquisites. However, a new company executive and Haddock were unable to share the same viewpoint, with the result the latter developed severe depression. The upshot was that Haddock had to abstain from work for nearly 7 months (emplaw, 2012). On resuming work, Haddock had to work under a new manager, who gave him an excellent report for his work. Thereafter, he had to work for another manager, who transferred him to another section. This new assignment was unsuitable for a person with Haddock’s qualifications. As a result of this degrading transfer, he underwent a nervous breakdown, which rendered him unable to work (emplaw, 2012). Haddock brought a claim under the Disability Discrimination Act 1995, before the employment tribunal at Reading. This tribunal determined that the employer had failed to make reasonable adjustments, as it had done during the 7 months of absence of Haddock. As a result, it awarded substantial damages to Haddock for psychiatric injury and injury to feelings. In addition, it awarded aggravated damages as the SEMA Group had failed to make any effort to resolve the issue (emplaw, 2012). Similarly, in our problem, the company would be held liable under the Disability Discrimination Act, if it cannot make reasonable arrangements to accommodate Roberts’ disability. Conclusions The company cannot terminate the employment of Robert on grounds of his disability. Although the accident met with by him was allegedly due to his drunken state, this had not been established officially. Moreover, the company authorities had never informed him about their car policy of not driving in a drunken condition. Hence, the company was at fault for not having explicitly made the car policy known to him. Although he is a top sales professional, he is also a highly qualified person, in the field of computers. Thus, he can be transferred to the computer division of the company, instead of asking him to continue on the sales side. In addition, reasonable adjustments have to be made to his work place, so that they are suitable for his requirements. Otherwise the company will be liable under the provisions of the Disability Discrimination Act. Recommendations In our present problem, although some benefits were accorded to the employees, by the company, discriminatory sick pay should be avoided, in order to evade legal claims from the employees. The company has to pay sick pay as per the provisions of the employment law and should accommodate Robert with a suitable job in the company. It should make suitable adjustments to his work place. The company should take care of all these issues in order to evade liability under the provisions of the employment law. References ACAS, Discipline and grievances at work [online] Available at: [Accessed 27 November 2012]. Associated Society of Locomotive Engineers and Firemen v Brady (2006) EAT 2006 IRLR 576. Birkinshaw, C. & Fairclough, M., 2001. Employee rights and management wrongs. Financial Times, 26 November, p. 04. British Home Stores v Burchell (1980) EAT 1980 ICR 303. Citizens Advice Guide, 2012. Basic rights at work [online] Available at: [Accessed 28 November 2012]. Code of Practice 1 ACAS Disciplinary and Grievance Procedures, 2009. London: HMSO. Compact Law, 2012. Length of Service to bring an unfair dismissal claim [online] Available at: [Accessed 29 November 2012]. Disability Discrimination Act 1995. (c.50), London: HMSO. Duncan, N., 2005. Disciplinary and Grievance Procedure: rights and best practice [online] Available at: [Accessed 27 November 2012]. Dunn & Anor v AAH Limited (2010) EWCA Civ 183. emplaw , 2012. Dispute Resolution / unfair procedures and their consequences [online] Available at: [Accessed 28 November 2012]. emplaw, 2012. ACAS / functions of / conciliation services [online] Available at: [Accessed 28 November 2012]. emplaw, 2012. Disability Discrimination / Disability Act 1995 / recent cases [online] Available at: [Accessed 28 November 2012]. emplaw, 2012. Disability Discrimination / recent examples [online] Available at: [Accessed 28 November 2012]. Employment Act 2002. (c.8), London: HMSO. Employment Law Advice, 2011. Commercial Motor, 13 January, 214(5415), p. 24. Employment Rights Act 1996. (c.18), London: HMSO. Fareham College Corporation v Walters (2009) IRLR 991. Mennell v Newell and Wright (Transport Contractors) Limited (1997) IRLR 519 . SEMA UK Ltd v Haddock (2002 ) EWCA Civ 361 . The Employment Act 2002 (Dispute Resolution) Regulations 2004, London: HMSO. Weddell (W) & Co Ltd v Tepper (1980) ICR 286. William Hill Organisations Ltd v (1) Miss T M Steele (2) Miss W McNeill (2008) UKEAT/0154/08. Read More