Human Resource Management and Why It Is Critical in Employment Law - Essay Example

? TABLE OF CONTENTS The Law of Employment 2 Memo 2 Introduction 2 Application 3 Conclusion 8 Recommendations 8 Memo 2 10 Introduction 10 Application 11 Conclusion 14 Recommendations 15 References 16 The Law of Employment Memo 1 To The Company Secretary, Computer Sales & Service Organisation Midlands From [Your Name] HRM Date: 1-12-2012 Ref: Advice for the company in respect of the legal consequences that have arisen after the dismissal of its employees Janice Halls and Kelsey Fields. Introduction Human Resource Management is critical for any business and serves to correlate business strategies with personnel management. The outcome is improvement in the effectiveness and overall performance of the organisation (Inyang, 2010, p. 25). In accordance with the provisions of sections 136 and 98(2) of the Employment Rights Act 1996, no employee can be dismissed unfairly by the employer (Compact Law, 2012). As such, the statute provides that an employee is entitled to a notice period, prior to dismissal. Such notice period is established on the basis of the length of service of the employee (National Employment Rights Authority, 2012). Application An employee has been defined at section 230(1) of the Employment Rights Act 1996, as an individual who works under a contract of employment. The Employment Act 2002 (Dispute Resolution) Regulations 2004 require employers to implement procedures for grievance and disciplinary actions. These statutory procedures have to be commenced in the first instance. This is essential for submitting employment issues before the employment tribunal. A dismissal will be deemed to be unfair, if the employer fails to adopt these procedures (Pothecary Witham Weld, 2012). Furthermore, the employer would be held liable by the court. Employees should have completed a one year of continuous service with the same company to avail the protection of dismissal rights. This applies only to those employees who were appointed before 6 April 2012. The corresponding period is two years for employees appointed after this date. In our problem, Janice had worked for two years with the same company. Hence, she should have been provided with a dismissal notice, which was not done by the company. Consequently, the dismissal procedures conducted by the company cannot be deemed as fair. Furthermore, in instances, wherein the employer dismisses an employee via procedures that are unfair, the dismissal will be deemed to be unfair, regardless of the issues involved (emplaw, 2012). Although, Kelsey had not completed a year’s period of employment with the company, she can file a claim of wrongful dismissal against the company for not following fair procedures in her dismissal. In general, the circumstances of a particular case, will determine the action that is justified or reasonable, whenever there is a need for formal action. As such, the employment tribunals will take into account, the size and resources of an employer, at the time of deciding on cases (Code of Practice 1 ACAS Disciplinary and Grievance Procedures, 2009). Under no circumstances, disciplinary or grievance issues should be dealt with in an unfair manner. Moreover, the ACAS has strongly recommended a thorough investigation of allegations by employers. Prior to a disciplinary hearing, particulars of the allegations have to be provided to the employee. In addition, the employee should be provided with an opportunity to explain what had transpired, and to draw attention to any extenuating circumstances (Birkinshaw & Fairclough, 2001). In our problem, Janice and Kelsey were suspected of having stolen a harddisk drive, since it was located in their jointly held locker. They were immediately suspended by the Warehouse Manager, and after two days a disciplinary meeting was conducted and they were dismissed. It is incumbent upon an employer to adhere to a fair process, while addressing a disciplinary or grievance issue. This holds good, even if the employee in question admits to the offense, as also to instances of gross misconduct. In general, instant dismissal will be unfair. The basic rights of an employee include, the right to be paid on being suspended till a disciplinary meeting is conducted; the right to be accompanied by a companion; the right to be notified in advance and in writing, regarding the conduct of a meeting; the right to be furnished with a copy of the disciplinary procedure to be adopted; the right to be informed in writing about the charges; and the right to appeal against the disciplinary action imposed (yourjobrights, 2010). In our problem fair procedures had not been adopted, as no written copy of charges had been provided to Janice and Kelsey. Moreover, they were not accompanied by a colleague or member of their Labour Union during the disciplinary proceedings meeting. The ACAS Code of Practice provides detailed advice and guidance that could prove to be of much assistance, while dealing with individual cases and general issues. Unfair dismissal law makes it mandatory for employers to act reasonably at the time of addressing disciplinary issues. Such reasonable conduct will be determined by the circumstances of each case, and in the final analysis is to be decided by the employment tribunal (ACAS, 2011, p. 3). In our problem, a proper investigation had not been conducted before dismissal of these employees, as neither the Warehouse Manager nor the Managing Director had considered the fact that one of the keys of the locker had been missing since a long time. In addition, the Managing Director confirmed the decision of the Warehouse Manager, without any further investigation into the matter. This constitutes an unfair dismissal procedure, as per the employment law. Employees, who believe that they have been dismissed unfairly, can make a claim before the employment tribunal. The claim can be for compensation or reinstatement. The tribunal may pass orders of reinstatement, and if the employer is disinclined to do so, then the tribunal will award additional compensation to the dismissed employee (yourjobrights, 2010). If an employer dismisses an employee without consulting the latter or the trade union, then such dismissal will be deemed to be an instance of unfair dismissal. A constructive dismissal has to necessarily entail consultation with the trade union or the employee. In Mennell v Newall, the decision was that the right of an employee to receive full salary could not be extinguished. Thus, it is not permissible for an employer to make unauthorised or unlawful deductions from the pay of employees (Mennell v Newell and Wright (Transport Contractors) Limited , 1997). In instances, where the statutory minimum procedures are applicable, there should be no unreasonableness in the venue and timing of the meetings. In addition, both the parties should be permitted to explain their case, and to the extent possible the proceedings should be conducted under the supervision of a senior manager. During these meetings, the employee concerned is entitled to be accompanied by a colleague or member of the labour union (emplaw, 2012). The aim of disciplinary procedures should be to bring about improvement in employees and not be limited to merely punishing them. The advantage of disciplinary procedures is that they deal with the deficiencies in the conduct or performance of employees. Moreover, they provide a means of making employees more effective. It is necessary for these procedures to be effective, equitable and to be applied uniformly (ACAS, 2011). The Employment Rights Act 1996 requires an employer to provide a notice period before dismissal, to an employee. Such notice should provide a minimum period that is determined on the basis of the length of employment with that employer. At no cost can such notice period be reduced in duration. Those who had been appointed prior to 6 April 2012 should have at least a year’s service to be protected against unfair dismissal. Those appointed after this date should have at least two years of service to be provided with such protection. This is as per the provisions of the Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012 (Parker, 2012). There has been an advent of a new ACAS statutory Code of Practice that relates to discipline and grievance. This was accompanied by additional resources, which were utilised for improving the help provided by ACAS and to provide early conciliation to employees and employers, with respect to problems that would have potentially resulted in claims before employment tribunals (Davey & Dix, 2011). Furthermore, the Government declared its intention to coordinate efforts with the mediation community, in order to promote the use of mediation. This Code requires employers and employees to conduct themselves in a fair and reasonable manner, while attempting to resolve their dispute (Davey & Dix, 2011). No liability is attached to a company that fails to comply with this Code. However, the employment tribunals are required by law to consider the Code while deciding cases. If the employment tribunal determines that the failure to comply with the Code had been unreasonable, it will have the discretion to adjust awards by 25% (Davey & Dix, 2011). Despite the requirement of a year’s service with the same employer for those appointed before 6 April 2012, and 2 years for those appointed subsequently, for unfair dismissal; a dismissed employee can claim compensation if the claim can be made under one of the heading that are independent of completion of qualifying service (emplaw, 2012). Conclusion In our present problem no notice had been served on both the female employees before dismissal, by the Warehouse Manager, John Biggins. Moreover, proper investigation had not been conducted by the manager or managing director, in to the alleged theft issue, despite of the fact that one of the keys of the locker had been lost earlier. The female employees have not accorded proper hearing or accompaniment at the time of disciplinary meetings. As such, this dismissal can be considered unfair, according to the provisions of the Employment Law. The aggrieved employees already approached Employment Tribunal and the company had received claim forms from the court. They can approach a mediator through ACAS for a consented agreement between the parties. This will circumvent the protracted procedures of the court room. Recommendations The adoption of good practices during the recruitment of employees brings about the creation of a motivated and competent workforce. Such practices have the added benefit of reducing discrimination claims and employee absence, and serve to promote the wellbeing of the organisation. In our problem, the Computer Sales and Services Organisation did not implement up to date policies, with regard to human resource management. They were following age old procedures, down loaded from a government website, long ago. Moreover, line managers had been authorised to make important decisions. This is not recommended as it affects the welfare of the employees. Proper human resource management procedures will benefit the company. Hence, the company has to adapt latest policies and procedures. Memo 2 To Sales Director, Computer Sales and Services Organisation Midlands From [Your Name] HRM Date: 1-12-2012 Ref: For making an opinion in respect of termination or deployment issues of the company’s senior employee, Robert Keys, who had met with an accident, a year ago. Introduction The inclusion of Diversity and Equal Opportunity policies and procedures by employers can prevent the discrimination of employees. The Equality Act 2010 provides protection to employees from workplace discrimination on the basis of gender, race and disability. This Act also accords protection to employees from abuse, defamation, and harassment (Equality and Human Rights Commission, 2012). The enactment of the Employment Act 2002 (Dispute Resolution) Regulations 2004, established the disciplinary, dismissal and grievance procedures that provide a framework for addressing problems at work. In general, the dismissal of employees without investigating the circumstances constitutes unfair dismissal. All the same, in some extremely rare instances, employment tribunals have upheld summary dismissals, as the circumstances had rendered an investigation redundant (Disciplinary, Dismissal and Grievance Procedures, n.d.). Application The provisions of the Equality Act 2010 define disability. Whenever, an employee is classified as being disabled, in accordance with these provisions, then the employer has to either provide some other job at the workplace or make suitable adjustments to the workplace (Greater Manchester Pay and Employment Rights Advice Service, 2010). In accordance with the Equality Act 2010, an individual is deemed to be disabled if that person has a mental or physical impairment that has a significant and long term effect on the capacity to perform customary daily activities (Your Job Rights, 2010). In our problem, Robert Keys, who met with an accident in the recent past, was unable to manage his office works, with the same competence as in the past. He was experiencing discomfort and pain, due to his injured leg, while attending to his works in the office. Moreover, the employer is required to accommodate disabled employees to the extent possible, by making reasonable adjustment to the recruitment procedure, work or the workplace. Although, the employer is not required to create a job for a disabled person, there is an obligation to consider changes, such as amending the duties, changing the working hours, making changes to the workplace, and acquiring equipment that assists the disabled. In the absence of all reasonable efforts to accommodate a disabled employee, the employer cannot terminate the services of the former (Your Job Rights, 2010). As such, the company has to make suitable adjustments to accommodate Robert in his work place. Since Robert is a computer professional they can accommodate him in the computer department, instead of sales promotions. Section 20 of the Equality Act 2010, requires employers to make reasonable changes to the workplace, in order to accommodate the disabled employees. However, in Borders Regional Council v Maule, it was held that the law also requires employment tribunals to arrive at a balance between the rights of employees and the requirements of the employer. The employment laws mandate that termination has to be on the basis of a just cause. The UK requires employers with more than 20 employees to provide the disciplinary rules along with the terms of employment (Birkinshaw & Fairclough, 2001). In addition, some companies have a zero tolerance policy, with regard to the consumption of alcohol and drugs. However, such policy should be explicitly brought to the notice of the employees, and could be notified in the employment agreement. In O’Flynn v Air links the Airport Coach Co Ltd, the company framed a zero tolerance drug policy. An employee who tested positive in a random drug test was dismissed, and the tribunal held that his dismissal was not unfair, owing to the critical nature of the work. Moreover, the Employment Appeal Tribunal held that the zero tolerance policy of a company towards alcohol and drugs, which involved the random testing of employees, was not in breach of the Human Rights Act 1998 (LRD Publications, 2012). In addition, such policy was deemed to be reasonable, as it reflected the genuine safety concerns of the employer. In Archibald v Fife Council, the court held that the employer had a positive duty to make adjustments to the work place that would enable the disabled employee to work at that place (Zymanczyk, 2007, p. 50). In such cases, the employer can also transfer the disabled employee to a job that is at a marginally higher grade. In SEMA UK Ltd v Haddock, considerable damages were awarded for psychiatric injury caused to Haddock. These injuries were the result of the failure of the employer to make reasonable and suitable adjustments to Haddock’s work environment. In Clark v TGD Ltd t/a Novocold, the Court of Appeal reiterated the norm to be employed for establishing disability discrimination. It ruled that with regard to a dismissed disabled employee, comparison was to be made with the treatment that would have been accorded to a non – disabled employee. In this case, the plaintiff had been dismissed for having availed long leave of absence, on account of the illness resulting from his disability. Employees are entitled to draw statutory sick pay (SSP) if they qualify in accordance with the national guidelines. The rate of SSP is ?75.40 per week, from April 2008. An employer has to pay SSP to the eligible employees, On account of SSP, the eligible employees who have been injured or who are sick to the extent that they cannot perform their normal contractual duties are provided with sick pay (Your Job Rights, 2010). Conclusion Disabled employees are protected against discrimination due to their disability by the Equality Act 2010 (GOV.UK, 2012). As such the company cannot terminate the employment of Robert, because of his disability after the accident. Disability discrimination can be contested under the provisions of the Equality Act 2010. As per the above discussion, Robert can be shifted to other suitable departments like computers operations instead of sales promotion. Sick Pay should be paid as stipulated by the provisions of the Act. Robert cannot be dismissed from the employment due to the reason of his disability. Moreover, Robert had been provided with full sick pay for three months after the accident. Thereafter, he had been provided with just half of the sick pay. This is in violation of the sick pay provisions of employment law. In our problem, although there is a car policy that prohibits drunken driving, Robert had never been informed about it. This negligent attitude reveals the lack of care towards the wellbeing of the company and its employees. Since, Robert was not notified of this policy explicitly, at any time during his employment, the company cannot take disciplinary action against him for drunken driving; as this would violate the provisions of employment law. Recommendations The company can approach ACAS for any further advice, if they face a difficulty in reinstating Robert in another department. Thus, they can avoid court claims. ACAS is automatically referred to by the employment tribunals, with regard to gender, race and disability discrimination, and complaints of unfair dismissal. A conciliatory officer is appointed by the ACAS in every case (emplaw, 2012). This official approaches the disputants in order to assist them in resolving the issue, without having to pursue a hearing in the employment tribunal. References ACAS, 2011. Discipline and grievances at work [online] Available at: [Accessed 1 December 2012]. Archibald v Fife Council (2004) UKHL 32. Birkinshaw, C. & Fairclough, M., 2001. Employee rights and management wrongs. Financial Times, 26 November, p. 04. Borders Regional Council v Maule (1993) IRLR 199. Clark v TGD Ltd t/a Novocold (1999) IRLR 318. 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]. Davey, B. & Dix, G., 2011. The Dispute Resolution Regulations two years on: the ACAS experience [online] Available at: [Accessed 1 December 2012]. Disciplinary, Dismissal and Grievance Procedures, [online] Available at: [Accessed 1 December 2012]. emplaw, 2012. ACAS / functions of / conciliation services [online] Available at: [Accessed 28 November 2012]. emplaw, 2012. Dispute Resolution / unfair procedures and their consequences [online] Available at: [Accessed 1 December 2012]. emplaw, 2012. Unfair dismissal / fair or unfair? [online] Available at: [Accessed 28 November 2012]. Employment Rights Act 1996, (c.18), London: HMSO. Equality Act 2010, (c.15), London: HMSO. Equality and Human Rights Commission, 2009. Ruling on access to bank confirmed by court [online] Available at: [Accessed 1 December 2012]. Equality and Human Rights Commission, 2012. Ten key questions about the Act [online] Available at: [Accessed 1 December 2012]. GOV.UK, 2012. Disability rights. Part 2 Employment [online] Available at: [Accessed 1 December 2012]. Greater Manchester Pay and Employment Rights Advice Service, 2010. Dismissal for Sickness [online] Available at: [Accessed 1 December 2012]. Human Rights Act 1998, (c.42), London: HMSO. Inyang, B. J., 2010. Strategic Human Resource Management (SHRM): A Paradigm Shift for Achieving Sustained Competitive Advantage in Organization. International Bulletin of Business Administration, Issue 7, pp. 23 – 36. LRD Publications, 2012. Law at work [online] Available at: [Accessed 1 December 2012]. Mennell v Newell and Wright (Transport Contractors) Limited (1997) IRLR 519 . National Employment Rights Authority, 2012. Minimum Notice [online] Available at: [Accessed 29 November 2012]. O'Flynn v Airlinks the Airport Coach Co Ltd (2002) All ER (D) 05 (Jul) . Parker, J., 2012. Unfair dismissal: qualifying service rule [online] Available at: [Accessed 1 December 2012]. Pothecary Witham Weld, 2012. Topical Employment Law Issues [online] Available at: [Accessed 28 November 2012]. SEMA UK Ltd v Haddock (2002 ) EWCA Civ 361 . The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012, (SI 2012/989), London: HMSO. Your Job Rights, 2010. Your Pay Rights [online] Available at: [Accessed 1 December 2012]. yourjobrights, 2010. Your Dismissal Rights [online] Available at: [Accessed 1 December 2012]. Zymanczyk, P., 2007. Grounds for dismissal. The Safety & Health Practitioner, 25(5), pp. 48 – 50. Read More