Employment Law Memos - Essay Example

?MEMORANDUM TO MISS SALLY TRENT (ST SOLUTIONS) FROM ABC HR LTD. March 23, RE CONSTRUCTIVE DISMISSAL/ HARASSMENT CASE FILED BY EMPLOYEE SCENARIO ONE I. INTRODUCTION This memorandum is served upon you to shed light on issues involving the cases which were recently filed by one of your employees, Ms. Tanya against your company. The cases she filed before the Employment Tribunal are twin cases of constructive dismissal and harassment. The issues presented before us now should be able to determine if the acts committed by the employer and her employees qualifies to the charge of constructive dismissal and harassment. Based on the reported facts, at the onset before Tanya was actually hired by your company, she already concealed a material information prior to her employment, which was her medical condition as she suffered from Trigeminal Neuralgia. Her present medical condition constrained her to report to daily to work if she is suffering an attack. Clearly, your company is already experiencing losses due to her absences. The constant conflict between Brian and Tanya must be resolved by the employer. Brian’s act of falsely accusing Tanya as “useless” and not being capable of carrying out her job already constitutes as a form of harassment (Isle of Wight Tourist Board v Coombes [1976] IRLR 413). As the boss of both Brian and Tanya, you are expected to resolve the friction between the two employees and to stop any form of harassment and to make sure to avoid it from happening again in the future. On the issue of incompetency of Tanya, it was recently discovered that she committed major blunders in the company while she was still an employee because the banking records are inaccurate and what’s worse is that she even misappropriated a sum of money since the petty cash fund is short by a ?100, which was under her custody while she was still an employee. This is a gross misconduct on her part and considered as stealing money from the company. I. ANALYSIS Under the law, a constructive dismissal case will only prosper if it satisfies the requirements provided under the law. The Employee Rights Act of 1996 of Section 95(c) provides that the employee terminates the contract under which he is employed with or without notice in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct (Employee Rights Act: 1996). In these circumstances, the employer’s behaviour constitutes a repudiation of the contract and the employee accepts the repudiation by resigning (Lewis 2009, p.210). In the case at bar, Tanya informed the employer that she is no longer reporting to work because of the verbal conduct of Brian against her. Here, it is not the employer’s conduct or behaviour which forced Tanya to resign, but was caused by Brian’s verbal abuse on her. In all fairness to you as the employer, you made reasonable efforts to prevent the harassment from happening again by telling Brian to stop the verbal abuse on Tanya. However, Brian was still not able to resist throwing invectives against Tanya in the workplace. The day after her last fight with Brian, she immediately filed the case without going through mediation. On the other hand, under the Protection from Harassment Act of 1997, a person must not pursue a conduct (a) which amounts to harassment of another and; (b) which he knows or ought to know amounts to harassment of another (Protection from Harassment Act: 1997). Clearly, Brian is guilty of verbally abusing Tanya every time he accuses her of incompetence in from of people in the office (Cortaulds v Andrew [1979] IRLR 85 ). Thus, this instance will fall as harassment on the part of Brian. As a general rule, the employer is liable for the acts of its employees under the principle of vicarious liability. However, the employer can avoid liability for discriminatory harassment if they can prove that they took such steps that were reasonably practical to prevent harassment from occurring. Furthermore, individual employees may also be liable, for example if they have subjected a colleague to harassment related to disability (Disability Discrimination Act: 1995).  The cases filed against your company must have a legal basis before it can ripen to a claim or cause of action in violation of a right. The circumstances show that Tanya was also at fault because from the moment she applied with your company, she already disclosed a material fact which was her medical condition. Undoubtedly, there is presence of evident bad faith on the part of Tanya because she did not inform you that you she was suffering from Trigeminal Neuralgia, a medical condition which can affect her job performance. Her medical condition will also affect the productivity of the company as she will be incurring absences every time she will have an attack. Hence, the company will stand to lose income and investment if it continues to employ incompetent employees like Tanya. In addition, it was recently discovered that after Tanya left the office that she has been misappropriating company funds because the petty cash funds is short of cash by ?100 and that the bank records are inaccurate. These are valid defences which you can interpose that she committed a serious and gross misconduct. II. RECOMMENDATION I recommend that you raise the defence that you took necessary steps to prevent the harassment in the workplace, but your employee, Brian did not heed to your request. As a general rule, there is vicarious liability on the part of the employer for the acts committed by its employees. However, the individual employee shall be liable in his personal capacity if such employee has subjected a colleague to harassment related to disability (Disability Discrimination Act: 1995). In the instant case, Tanya is suffering from a medical condition known as Trigeminal Neuralgia. In most cases when she and Brian engage in an altercation, Brian always calls her “useless” and “incompetent” which can be attributed to her physical disability. Verily, it is Brian alone who is personally liable in his own capacity under the Disability Discrimination Act for subjecting his colleague to harassment based on Tanya’s disability. It is best that you opt and choose to resolve the issue by an out-of-court settlement of the case and disregard standing a battle before the Tribunal. Considering the size of your company and the expenses which you will incur if you proceed to fight it out in the Tribunal is exhaustive and costly. In order to save time and money, it is deemed for the best of both parties if you both resolve the issue out of court. In this manner, it will be easier and you do not have to undergo the process of a gruelling trial and be more economical. As a preventive measure, your company should formulate Equal Opportunities and Anti-Harassment and Discrimination Policies so that your employees will be properly guided on what conduct must be carried out in the workplace. Through this tool, your employees will have equal opportunities and issues on harassment and discrimination will be avoided. Some of the protected characteristics include age, disability, gender, race, color, religion or marriage/civil partnership. It must be stressed to your employees that discrimination in any form will not be tolerated. It is also possible that there are instances where you and your employees are caught off guard because you are unaware of the protected characteristic of one of your employees or colleagues. By creating these policies, your employees will feel that they are safe within the workplace and can run to their employer to seek help in case harassment and discrimination takes place in the office. I also recommend that for the recruitment of Tanya’s replacement, you should see to it that the candidate shall disclose his/her all medical conditions during the interview and it has to be stated in the application forms. You must also require them to undergo medical examinations and to submit the medical results. In this manner, you are ensured that you are hiring a healthy employee. III. CONCLUSION: Tanya has a cause of action against Brian for harassing her through verbal abuse by attributing her competencies to her physical disability. The employer will be absolved from the charges of constructive dismissal once it is proven that she has taken necessary steps and exerted reasonable efforts to prevent the harassing and discriminative behaviour from taking place inside the workplace. For this reason, you can raise this as a defence to resist payment of any monetary claim. Tanya’s non-disclosure of a material fact involving her medical condition constitutes evident bad faith on her part. The recent discovery that she has been committing serious vital errors in her work as shown in the inaccurate bank records and misappropriation of petty cash funds constitutes gross misconduct on the part of Tanya. You can also use Tanya’s gross misconduct as a just cause to justify the denial her of any monetary claim due to the fact that misappropriation of company funds is tantamount to stealing from the company. As an employer, you also have to see to it that your employees are subjected to an environment which is conducive for productivity and learning. To be able to achieve this, the employer must ensure that you create policies to prevent a discriminatory or harassing behaviour to take place within the company premises in order to protect your employees. MEMORANDUM TO : MISS SALLY TRENT (ST SOLUTIONS) FROM : ABC HR LTD. DATE : March 23, 2011 RE : REDUNDANCY AND CLOSURE OF BUSINESS SCENARIO THREE I. INTRODUCTION This memorandum is served upon you to shed light on issues involving the forthcoming redundancy and closure of business. In this instance, the shop you own in St. Ives has been suffering from serious financial reverses and you are considering to close-up the business to avoid possible losses. Under the law, your company’s option is to implement redundancy. The closing of the business is the best decision for you so that you will be absolved from suffering further financial losses. However, there are procedures to be followed before your company can actually proceed with the closing of the business with the target date of June 1, 2010. In your case, you have five (5) employees, three (3) of which are regular employees and two (2) “Saturday staff” who have been working at you business for two years. You are required by law to pay them statutory redundancy pay depending on their length of service, age and pay. Details for the calculation of the statutory redundancy pay can be viewed at the UK Employment Law website at . Each of the employment contracts of your five (5) employees must be carefully studied. You are also required to inform them in writing before the full implementation of the redundancy on June 1, 2010 in order to apprise them of the current situation of the company and to comply with the notice requirement under the law. II. ANALYSIS Under Employees Regulation Act of 1996 139 (1) which provides: For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to— (a) The fact that his employer has ceased or intends to cease— (i) To carry on the business for the purposes of which the employee was employed by him, or (ii) To carry on that business in the place where the employee was so employed, or (b) The fact that the requirements of that business— (i) For employees to carry out work of a particular kind, or (ii) For employees to carry out work of a particular kind in the place where the employee was employed by the employer (Employees Regulation Act:1996) In the case at bar, you clearly fall under the definition of redundancy. A redundancy arises where there is (1) a dismissal of an employee (2) caused wholly or mainly by (3) either a “business closure”, a “workplace closure” or a “reduced requirement for employees”.  All three elements must be proved. A more detailed discussion on redundancy can be viewed in an article which you can find at . The particular provision of the law which is applicable to these employees is Section 139 (1) (b) (ii) of the Employees Regulation Act of 1996 which states that: For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to— (ii) For employees to carry out work of a particular kind in the place where the employee was employed by the employer. Here, you as the employer no longer wish to continue with the business and give up the lease contract renewal which is due on June 1, 2010. You only intend to bring just one member of the St. Ives shop team back in your house to join the team at Haddenham. Hence, the case of the five (5) employees who will be affected by the redundancy will be tantamount to a dismissal. The employment contracts of the five (5) affected employees will be discussed clearly individually as follows: First employee is Greg, the Shop Manager, who has been employed with you since July 2007, with a salary of ?20,000.00 per year. His total length of service is three (3) years. Second employee is Tony, Greg’s assistant, with the designation of Assistant Manager with a salary of ?15,500.00 per year. He has been with the company since November 2007. His total length of service is three (3) years. Third employee is Gale, the Sales and Photo Shop Assistant, who has been employed in the company since February 2008, with a salary of ?11,000.00 per year. Her total length of service is two (2) years. Fourth and fifth employees are the “Saturday” staff who had been employed in the company for two (2) years. In order to determine the work of particular kind, Lewis (2009 p. 240) stated that three further points must be made: 1. Employees will be entitled to payment notwithstanding that it could be seen from the commencement of the contract that they would be dismissed for redundancy. The fact that the contract was temporary and short-term makes no difference in this respect. 2. The statutory definition of redundancy focuses on the employer’s requirements, rather than the needs, thus- even there is still a need for the work to be done- if owing to the lack of funds, the requirement for the employee’s service has ceased, the employee is redundant. 3. Sec 163(2) ERA 1996 states that an employee who is dismissed is presumed to be dismissed by reason of redundancy unless the contrary is proved. Based on the facts stated, all the five employees are already entitled to receive redundancy pay because they have been employed in the company for at least two (2) years. Hence, your company is required by law to pay them the Statutory Redundancy Pay. In order to qualify for a redundancy payment, an employee must have been continuously employed for two (2) years at a relevant date (Lewis, 2009, p.238). III. RECOMMENDATION I recommend that the employees will be given notice of dismissal informing them of the company’s decision to close the business on June 1, 2010, which must be made at least three (3) weeks prior to the closure. This is in accordance to Sec. 86 of the Employees Right Acts of 1996 which provides: Sec. 86. Rights of employer and employee to minimum notice. (1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more— (a) is not less than one week’s notice if his period of continuous employment is less than two years, (b) is not less than one week’s notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years. Therefore, I firmly suggest that you strictly comply with the notice requirement provided by law to avoid further liabilities on the part of the employer. It is also mandatory that the employer pays the redundancy payment of the employees as a matter of right, pursuant to the provisions under the law. IV. CONCLUSION To conclude, you as the employer have decided to discontinue with the business and give up the lease contract renewal which is due on June 1, 2010. You also resolved to bring just one (1) member from the St. Ives shop team back in your house to join the team at Haddenham and fill the position of project assistant. Hence, the case of the five employees, only one member shall be retained. You have to choose the right employee who possesses the requirements of having a wider IT skill set needed by the job position to be adaptable to assist on the projects across all the business. This act shall fall as alternative employment and must comply with Section 141 of the Employees Rights Act of 1996. Before ending the employee’s contract who you wish to continue, you must make an offer, in writing or not, to renew the contract or re-engage under a new contract to take effect either on the ending of the old contract or within four weeks. If the employee unreasonably refuses that offer, then he or she will not be entitled to redundancy payment. The burden is on the employer to prove the suitability of the offer and the reasonableness of the employee’s refusal (Lewis 2009 p. 240). It is also mandatory that you must comply with the notice of dismissal requirement under the law and compensate the five (5) dismissed employees their redundancy pay pursuant to the requirements under the Employee Rights Act of 1996. Failure to comply with these prerequisites will be meted with penalty. References: Cortaulds v Andrew [1979] IRLR 85 Disability Discrimination Act of 1995 The Employee Rights Act of 1996 Section 95(c) Isle of Wight Tourist Board v Coombes [1976] IRLR 413 Lewis, D. & Malcolm, S. 2009. Essentials of Employment Law 10th ed. CIPD House, Broadway London. Protection from Harassment Act of 1997 UK Employment Law 2005, Redundancy, Manchester and Guildford UK, viewed on March 24, 2010, < http://www.roydens.co.uk/content36.htm> Read More