Minimum Notice and Terms of Employment Act - Term Paper Example

Introduction This paper is an advice to a client on case dealing with employment law. It mainly deals with unfair dismissal and “garden leave” clause. Facts of the Case For over thirty years, Clarissa has been an employee of Precision Missiles Plc. As a part of her job profile she has access to confidential information such as the rapidly changing missile technology. This includes the secret guidance system that gives the missile great accuracy over long ranges. It is this technology that gives Precision Missiles Plc the competitive edge over its competitors and attracts many foreign governments to buy their missiles. According to the agreement, the contract of employment between Precision Missiles Plc and Clarissa needs a six month notice from either side for termination. There has been no express “garden leave” clause in her agreement. Clarissa had a very difficult divorce in 2011 and as a result of this her professional life suffered. She became careless and negligent with her work. In a major event which was attended by foreign governments (potential buyers), she left the trigger switch that fires the missiles in the office. Due to this demonstration had to be stopped. Even though this was a serious lapse from Clarissa, she was only given an informal warning and let off. She showed improvements after this. But in the re-scheduled demonstration, she programmed missile to fly for 100km rather than the 1 km that was planned. But the mistake was identified and the calculation revealed that even if the missiles had been fired they would have landed safely on a cow barn in Surrey. But after this negligence, the manager lost confidence in her and she was fired. The consequences of repeated negligence could have critical and more damaging. She was dismissed as per the contract with a six month notice and her employment contract would be terminated on 31st March, 2012. Also fearing the safety her colleagues, she was sent home on “garden leave”. During this period she was not required to work but would still be paid. She was not happy with this and complained unsuccessfully about “garden leave”. She was offered a job Flare Missiles on 1st January 2012. But the offer was valid only if she could join on February 2012. Clarissa need advise on: Clarissa needs advice on the following two issues; i. Whether she can successfully pursue a claim for unfair dismissal compensation against Precision Missiles plc. ii. Whether she can lawfully accept Flare’s offer of employment. If the answer is a “no”, what would be the consequences if she still accepted the offer. Case Analysis Issue One: The first issue is if she can claim unfair dismissal compensation. In order to claim unfair dismissal compensation, an employee must have been employed at least for a year (i.e. 52 weeks)1. Clarissa fulfils this and hence she will be able to claim for unfair dismissal compensation. Once a claim has been made for unfair dismissal compensation, it is up to the employer to prove that the dismissal was fair and the employer has to do this by passing a two stage test. Stage 1: First there must be a fair reason for the employer to dismiss the employee. If the employer claims that the dismissal was on the grounds of a fair reason, then it’s his responsibility to prove it2. The employer must first prove to the tribunal that there was a fair reason for dismissing the employee. According to the Employment Rights Act 1996, s98(2), following are the potentially fair reasons that an employee could be dismissed: 1. Capability 2. Conduct 3. Redundancy 4. Legal Obligation An exception can be made and an employee can be dismissed on any other substantial reason3. In the current case, the reason for dismissal will fall under conduct. She is very much capable of doing her job as she has been doing it for the past thirty years. She is qualified and also has no health issues that are contributing to her poor professional performance. She has also been trained to do her job effectively. Clarissa has not been able to perform, because she is disturbed due to rough divorce she has been through last year. Professionally speaking she should not let her personal issues affect her professional life, especially when she has such a high profile job her actions can make or break the company. Therefore, the employer will argue that it is purely negligence and carelessness on Clarissa’s part that has lead to her dismissal. Clarissa has the talent to do her job efficiently but has shown that she is not willing to apply herself. In Sutton & Gates (Luton) Ltd v Boxall it is stated that misconduct is the failure of an employee to completely use the talent that they possess to effectively do their job4. Another point that Precision Missiles will use in the argument is that this was not a dismissal based on one such incident. There was repeated negligence and carelessness on Clarissa’s part. She was given a warning and the time needed to improve. But as Clarissa repeatedly showed that she could not apply herself, she was dismissed. This would be a fair reason and would pass the stage 1 of proving that the dismissal was on the grounds of a fair dismissal. Stage 2: In the second stage, the employer will have to prove that a fair procedure was followed in dismissing Clarissa and the employer acted reasonably in doing so. “A dismissal without completion of the standard procedure (wholly or mainly attributable to the failure of the employer) will be unfair”5. If Precision Missiles can prove that any other reasonable employer would have done the same6, then they will pass this stage too and will have proved that the dismissal was a fair one. An employer would have failed to follow a fair procedure: If a warning was not given to the employee7 Was not given time to improve Was not given the right to appeal8 Alternate employment option In Clarissa’s case, she was given an informal warning and also time to improve. Even though she should improvements during this time she was not careful enough and in the next demonstration was negligent. It could be argued that the warning was an informal one and there was not written warning. Also, there was no alternate employment option discussed with Clarissa and was also not given a proper right to appeal. But this argument would not be strong enough to prove that a fair reason was not followed. The reason is the consequences of the negligence and carelessness of Clarissa. The job profile of Clarissa was such that her negligence directly affected the company business and also the brand image that the company has established for itself. As she deals with missiles, if she is not 100% careful her negligence can even lead to loss of human life. As in the second incident the missile could have landed on populated area instead of a cow barn. Considering the seriousness of the job and consequences of her negligence, Precision Missiles can convince the tribunal that an informal warning and time to improve was fair enough. They can also prove that any other reasonable employee would have done the same considering the nature of the company’s operations. This would then prove that a fair procedure was followed in dismissing Clarissa. Issue Two: Next issue is with respect to “Garden Leave” and if Clarissa could lawfully accept the offer from Flare Missiles. Firstly, it has to be seen if Precision could impose a garden leave injunction as there was no express garden leave clause in the agreement. An employer can impose a garden leave injunction if he sees a valid threat from the employee9. In this case, Precision foresaw a threat to the Clarissa’s colleagues and also the company in letting her to continue with her job. Therefore, Precision Missiles was within limits in imposing the garden leave injunction. An employer can use the garden leave injunction as long as it is reasonable10. In this case, it is reasonable for Precision to impose the garden leave injunction. Also, now that Clarissa is wanting to accept an offer from Flare Missiles, it makes it easy for Precision Missiles to argue that it was imposing garden leave injunction was a right thing to do. No coming to the second part, if Clarissa can lawfully take up the job offer from Flare Missiles. A garden leave injunction can be used by an employer to prevent an employee from working for a competitor11. According to this, it is Precision can oppose Clarissa from joining Flare Missiles as it can be proved that Clarissa has confidential information and if shared with Flare Missiles (which is a competitor), Precision Missiles can lose its competitive advantage and its business. Advice From the above analysis, advice to Clarissa would be: i. Precision Missiles will be successful in proving that there was a fair reason and a fair procedure was followed in dismissing Clarissa. Hence, she would not be able to successfully pursue a claim for unfair dismissal compensation against Precision Missiles plc. ii. She will not be able to lawfully accept the job offer from Flare Missiles. If she does go ahead and accept the offer, she can be suspended from Precision Missiles during her notice period and her remuneration during the period can be stopped12. Precision Missiles can go to court for compensation for losses caused due to her job acceptance. Bibliography 1. Employment Rights Act 1996, s98(1) 2. Employment Rights Act of 1996, s 98a(1) 3. Employment Rights Act 1996, s98(1)(b) 4. Minimum Notice and Terms of Employment Act, 1973, s1 5. SG&R Valuation Service Co LLC v Boudrais [2008] IRLR 770 6. St Annes Board Mill Co Ltd v Brien [1973] ICR 444 7. Sutton & Gates (Luton) Ltd v Boxall 8. Symbian Ltd v Christensen [2001] IRLR 77 CA 9. Tower Hamlets Health Authority v Anthony [1989] ICR 656 10. William Hill Organisation Ltd v Tucker [1998] IRLR 313, CA 11. West Midlands Co-operative Society Ltd v Tipton [1986] ICR 192 Read More