Employment Law for HR Managers - Essay Example

a) The issue regarding this case would be that Outrageous has shown pictures in this advertisement that specifies race. In addition, the company has used terms that specifies the age of future applicants. Therefore, this case could raise an issue of discrimination. Discrimination is treating a person or a particular group differently because of their skin, color, age, sex etc. There are two types of discrimination namely; direct and indirect1.Direct discrimination is defined as a scenario when a person discriminates against another person, and treats him/her less favorably than another person. Furthermore, indirect discrimination arises when a person discriminates against another person through applying a ‘provision, criteria or practice’ that is discriminatory against another person. For example, an employer only advertises jobs in magazines aimed at young people. The first two issues that may arise with regards to showing photographs of white and Asian people are that this is considered by statutory laws to be racial discrimination. However, it could be argued through the use of the principle of positive action which states that racial discrimination is only applicable when a person reasonably believes that he/she would suffer a disadvantage in relation to the characteristic shared. Therefore, in this case it could be argued that races other than white or Asian are not reasonably disadvantaged.2 The second issue in this case is the use of a specified term “young” to relate to the age of the suitable applicants. This could result in age discrimination as mentioned in Equality Act. Age discrimination happens when a person refers to another person in relation to a specified age group3. In this case it could be argued that Outrageous has discriminated by referring to a specific age group. It could be concluded by the usage of all arguments mentioned above that Outrageous may face problems in relation to the age discriminating terms used in the advertisement. However, the photographs of white and Asian seem to be less important as there are no reasonable grounds to believe that a certain race is being disadvantaged. So it is advisable that Outrageous changes the language used in the advertisement and in the same time keep the photographs as it is. b) The fact of the case above shows that Outrageous has already done the first round of interviews for the trainee position and has rejected three interviewees, one of them was a male who wears turban another was a Muslim woman aged 21 who wears a hijab the and last one is a woman who rejected because she is in her late 30s and he thought that she will not fit with the other trainee in the workplace. The issues according to this case would be that Outrageous has rejected a sikh male who wears turban and Muslim woman who wears hijab this could raise an issue of racial discrimination. In addition, the company has also rejected a woman in her late 30s because they thought she would not fit with other trainees. Therefore, this could raise an issue of age discrimination. The first issue that may arise and perhaps cause problems to Outrageous which has rejected a sikh male who wears turban without justification is related to racial discrimination. Referring to Johnson v Timber Tailors (Midlands) (1978 ) case: A black Jamaican applied for a job as a wood machinist, the manager told him that he will contact him in a couple of days to let him know whether or not he has been successful. Mr Johnson wasn’t contacted, after a number of unsuccessful attempts to get in touch with the manager, he was informed that the vacancy had been filled. Nonetheless, another advertisement for wood machinists was flight and Mr Johnson applied again but was told the vacancy had been filled. So he applied again but he was told that the vacancy had been filled. An employment tribunal decided that the evidence established that Mr Johnson had been discriminated against on the ground of race. It could be argued that Outrageous has rejected sikh male because they need someone not covering his/her hair in case to show the customer the hairstyle of the stuff and that will attract more customers. The second issue that may also arise with regards to rejecting a Muslim woman aged 21 who wears hijab is Outrageous think that it is important that hairdressers show their hairstyle to customers and should not keep it covered. This could result in racial discrimination. Racial discrimination occurs when a person discriminates against another in any circumstances relevant for the purposes of any provision of this Act, if he applies to that other, a requirement or condition which he applies or would apply equally to persons not of the same racial group.4 Additionally, a Muslim woman is denied a job as a hairdresser because she wears a headscarf and she wins £4,000 payout. In this case Bushra Noah accused Sarah Desosiers, owner of a trendy central London hair salon, Sarah argued that she did nothing wrong by not employing Bushra when she felt that a job requirement of any hairdresser was that stylists’ hair would provide clients with a showcase of different look. However, the tribunal ruled that Bushra’s claim of direct discrimination failed. Her claim for indirect discrimination succeeded. Sarah has therefore been ordered to pay £4000 pound by way of ‘injury to feeling’. With regards to this issue of indirect discrimination, the tribunal found that Sarah had pursued a legitimate aim that was proportionate5. So it could be argued that Outrageous has discriminated this woman indirectly by rejecting her and that would be considered as racial discrimination. The third issue may arise is that a woman in her late 30s has been rejected because although she had real potential, Outrageous alleged that she would not fit in with the other trainees. This could be viewed as age discrimination. This can be likened to the case of Price v the Civil Service Commission (1977) where the civil service required applicants between 17 and 28 years. Belinda Price criticized that this age bar established indirect discrimination against woman, so the Employment Appeal Tribunal decided that the age bar was indirect discrimination against woman.6 In this case, Outrageous has discriminated by rejecting an applicant because of her late 30s. It could be concluded by the usage of all arguments mentioned above that Outrageous may face problems related to racial discrimination where it rejected a male because of turban and a woman for wearing a hijab as well as age discrimination by rejecting a woman in her late 30s. Legally, all people should be presented with equal employment opportunities regardless of their age, race, color or creed. Issue 2 a) Before making any decision to dismiss the employees, Wessex Cakes should follow the steps mentioned in the ACAS code of practice for disciplinary and grievance procedures. The two main issues in the case above include misconduct and poor performance which as a part of the disciplinary situations mention in the code of practice. Rules and procedures that govern the disciplinary situation should be in writing, in a specific and clear language. It should be understandable by the employee and the employer. Actions that are taken with respect to the code of practice should not always be carried out fully step by step, but the steps undertaken should be reasonable and fair. The code of practice outlined five steps that should be carried out during the process of a dismissal. The five steps are as follows: 1) The act of employees and employers should be consistent. 2) Employers should take reasonable steps to investigate in order to establish the facts of the case. 3) Employers should inform the employee of the problem and allow them to justify their conduct, if there is any justification. This step should be made before carrying out any decisions. 4) Employees should be allowed to be accompanied at any formal disciplinary meeting. 5) The employee is allowed to appeal against any formal decision made.7 In this case, it is advisable for Mr Ethelred to follow the above mentioned steps in order to make the case authentic. Failure to adhere to the provisions of the ACAS Code may result in the issue being regarded as a farce which may discredit the organization. It is therefore advisable that a full disciplinary procedure be taken instead of fast tracking the process. b) The two main issues in the case above include misconduct and poor performance which forms a part of the disciplinary situations mentioned in the code of practice(ACAS).8 Alfred, Barbara and Colin could be dismissed unfairly and also could be dismissed fairly. However, what has been mentioned in the law is that ‘any employee has the right not to be unfairly dismissed’9. A request to an Employment tribunal should be made as soon as the employer has given notice of dismissal and should be received but if the request is received any later than that date, the Tribunal will consider the complaint only if they believe it was not reasonably practicable for the employee to have made the complaint within the three-month period.10 Furthermore, what has been mentioned in question (A) about advising Mr Ethelred is that the steps mentioned should be followed by Wessex Cakes before arriving at any decision and to avoid unfair dismissal. Additionally to the steps that Mr Ethelred has already followed which has applied the advises and then dismissed the three employees are: 1. Establish the facts of each case which is important and necessary investigations of possible disciplinary stuffs without unreasonable suspension to establish the truths of the case. Also, in a case of misconduct, different people should do the investigation and disciplinary hearing. 2. Let the employees know about the problem if the disciplinary case has already decided to answer and for that the employee must be informed of this in writing. This notification should cover information about the suspected misconduct or poor performance to let the employee preparing to answer the disciplinary case.11 3. Convene a meeting to discuss the problem with employees. However, employers and employees should make sure to attend the meeting and the employers will explain why a complaint against the employee has been made and provide evidence. 4. Choose the suitable action where a decision to dismiss must be taken by the manager and the employees must be notified as soon as possible after their dismissal. At ACAS, the advice is always that it is best for employers and employees to resolve disputes as early as possible. Nevertheless, it could be argued with regards to the issue of (Britsh home stores LTD appellants ) V Burchell in which Miss Burchell is dismissed because she is involved with a few of other employees in problem relating to staff purchase. A purchase made by one of the employees is appearing as a purchase made by Miss Burchell. While the company is investigating Miss Burchell, she was implicated by one of the employees involved. So the Tribunal held the dismissal was unfair. In the case where an employee is dismissed because of the employer’s suspicion of an act of misconduct and whether that dismissal was unfair, the tribunal has to make a decision on behalf of the victim. Issue 3 Redundancy means that the employer has decided to reduce their workforce due to the fact that the factory is closing down or production in the company has been scaled down.12 In this case, Mr Ethelred is able to dismiss the employees on the ground of redundancy fairly because redundancy is whenyou dismiss employees you no longer need due to reduction in production or because the business is changing location or closing down.13As Wessex Cakes will be closing one of its factory lines, Mr Ethelred can cite redundancy as the reason for dismissal of the employees. Mr Ethelred has responsibilities to treat the employees fairly and follow the correct process if they are considering making redundancies. The redundancy procedure that Mr Ethelred should follow before dismissing any employees and reduce the risk of an unfair dismissal claim is to present a formal redundancy procedure and stick to it. It must cover: Identifying a reasonable ‘pool for selection’ Adopting objective selection criteria and apply them fairly to the employees. Warning and consulting employees about the redundancy situations. Seeking a view from the union(if any) In cases of collective redundancy, Mr Ethelred should inform and consult the employees. Reasonable paid time off should be given. Consider alternative employment for those employees whose roles have been rendered redundant.14 Mr Ethelred should follow collective redundancies as well. Collective redundancies mean dismissal effected by an employer, and the number of redundancies is over the period of 90 days and it involves at least 20 people. In this case, Mr Ethelred will have to make 25 employees redundant within a period of 90 days at one establishment.15 Moreover, the employees can make a claim if redundancy pay is not offered. Employees have 3 months less one day to bring claim if the employer fails to pay them. Tribunals can adjust awards by about 25% if they think that the employer or employee has unreasonably failed to follow the ACAS code of practice16. Also, the employees can claim if they have not been given a notice period. Mr Ethelred should have an idea about the written notice period depending on the period of service.17 Period of service Notice required Between 2-5 years 2 weeks Between 5-10 years 4 weeks Between 10-15 years 6 weeks Over 15 years 8 weeks In this case, Mr Ethelred has already given the employees 4weeks notice period. An employer will pay a redundancy payment to any employee if the worker is dismissed by the employer on the ground of redundancy. Therefore, the employees are qualified for a redundancy payment.18 Nevertheless, it might be possible for the employees to argue that they have been unfairly dismissed. As Mr Ethelred will have to dismiss 25 of 40 employees, those 25 employees who will be redundant can argue that they have not been chosen fairly. If Mr Ethelred has not followed a fair redundancy process, employees may be able to claim for unfair dismissal at the tribunal. In this situation, the employer might offer the employee a compromise agreement. This is a cash sum in exchange for giving up your right to go to tribunal.19 I would advise that Mr Ethelred that two or three meetings are to be held. The meeting must become progressively more detailed and a written record must be kept. I suggest that memos are used to record the discussion and also the employer should always speak to the employee directly about why they have been selected. Read More