The Employment Tribunal - Essay Example

Task Attention: Mrs. Alice Brown To begin with, the facts of the case suggest that the company’s actions did not constitute unfair dismissal because the procedure used was fair. The employee’s behaviour drastically changed for a whole year during which time the company expected that his performance would go back to normal. His performance deteriorated as he was not able to sell anything and he depended on the Company’s monthly retainer. It was just for the company to dismiss him as his performance in terms of meeting targets was becoming too costly for the company. There is a problem raised in terms of considering which charge to raise against the defendant. The company should complete the ET3 form so that they can be able to defend the claimant’s claim of unfair dismissal then present it to the employment tribunal within 28days from the time it received the claimants form. The Employment tribunal is mandated to listen to cases that arise in employment, concerning the employer or the employees over their employment rights. If the company does not present its ET3 form to the employment tribunal default judgment is likely to be entered against them, which will then preclude the company from taking part in the proceedings. If the respondent presents their ET3 form to the tribunal, the tribunal has the power to order for disclosure of all the relevant materials pertaining to the case. The employment rights are enumerated under the employment rights act. The act provides under section 36 that an agreement will be deemed to be terminated upon the last day of the period that is agreed upon. The company gave Jack a notice of termination of his employment and therefore by virtue of the notice his employment was terminated upon the lapse of the period given for termination. The company complied with the terms that had been laid down in the contract of employment for the termination of the contract thereby they did not breach the terms of the contract. Notice of termination should be followed by an explanation of the reasons as to why one is being terminated from employment, the reasons could be written or they could be verbal. The employee is also entitled to remuneration for the period that he was given notice because he remained on employment. When it comes to poor performance and misconduct the employment rights act stipulates under sections 38(2) and (3) that an employer shall only terminate the employee’s contract of employment if there is no other cause of action that can be taken. Further, the act states that, when there is a charge made against the employee for misconduct or poor performance the employee should be given the chance to respond to such a charge. It is after the employee has responded to such a charge that the employer can then effect his termination. Gross misconduct is whereby the employee conducts himself so badly that his behaviour ruins the relationship between him and his employer that leads to immediate dismissal. In the above case, the company did not give the employee an opportunity to reply to a charge of misconduct or poor performance. The company raised the allegations of his misconduct and poor performance after his contract had already been terminated. We see that it is only after the termination of Jack’s contract that the employer became aware of the fact that he had a drinking problem and discovered the empty bottles of alcohol in his desk. Apart from Jack coming to work in an unacceptable condition, all the reasons were brought up after the employee had left the premises of the company that proves that he was not given a chance to respond to any charge that was brought against him and he was neither given a reason for his termination. The company acted wisely in giving the employee a notice of termination instead of instant termination. The tribunal considers instant termination seriously; it looks to see if the employer’s reasons for termination were reasonable and if it was fair considering the circumstances of the case. This will mean that one has to prove that the employee acted so wrongly that only instant dismissal was appropriate. The activities that constitute gross misconduct or poor performance could be indicated in the contract of employment. The inclusion of such statements and definitions in the contract of employment portrays that the company regards the matter as being particularly serious. If the company had such provisions in the contract of employment then they could use it as a defence to show that they regard matters of gross misconduct with utmost importance and that is why they had to terminate Jack’s contract of employment. A company must ensure that it acts fairly and reasonably when terminating ones contract, The ACAS code of conduct provides the employer with the procedures for dealing with grievance issues so that whatever procedure one chooses to apply to an employee as a disciplinary mechanism will be fair and reasonable. The company could seek mediation and appeasement instead of having to go through the full hearing of the tribunal. The outcome of conciliation and mediation is usually fair and reasonable to both parties. The company could factor in capability of the employee. Capability can be seen in three different ways. These include health, qualifications and competence. In this case, we focus on competence. One can be competent in his work but in one particular occasion, he engages in an incident that is likely to suggest that he is incompetent. As in the above case, we note that Jack was very experienced to the extent that the company did not interfere with his work because they knew that he was good in it until suddenly he started experiencing incompetence, in that he was unable to meet his targets and this is what led to his employment termination. The conduct of the employee is also to be considered in such circumstances. How did the employee behave before his contract was terminated? Drinking alcohol is among other conducts that give rise to a dismissal. Jack became irresponsible. He could not perform his duties at work because he drank alcohol at work and his performance started deteriorating. If such a conduct is persistent then it warrants a dismissal. The company noted Jack’s poor performance for a whole year but retained him. It became too much that the company could not bear with him anymore and so they were forced to lay him off. His capability went down and the company should have in its possession documented evidence to show that the employee’s capability was wearing off. A drinking employee is not good for business. Jack had become an alcoholic and his problem would have even affected the people around him. The employment appeal tribunal has dealt with such issues of drunkenness in trying to find out whether the employer was entitled to instant dismissal. In the case of Connor .vs. George Wimpey EAT 37/82, an employee who was due to return to work at the North Sea was stopped just before he boarded the aircraft. This was because of his drunken condition. The tribunal held that the decision to dismiss the employee was within the discretion of a prudent employer and the application of the employee lacked merit. In yet another case that was decided upon by the employment tribunal the court held that the employer should have emphasised the importance attached to the rules against drinking and give penalties for the same for an employee who was found drinking during working hours. Since the employer did not do so, the tribunal held that the dismissal was unfair. This was the case of Dairy Produce Packing .vs. Beverstock [1981] IRLR 265. Alcoholism procedures and policies are adopted so that it can be easier for employers to deal with such problems. When an employer is dismissing an employee, he should ensure that he is consistent. He should not be strict on one employee and lenient on the other. In dismissing an employee, an employer should always use the same procedure for dismissal and apply it to all his employees. When regarding the health of the employee who is an alcoholic the employer must be able to prove that the employee has a medical condition. The employer must seek medical proof to show that the employee is an alcoholic before he can dismiss him for medical grounds. This was the decision in the case of East Lindsey District Council .vs. Daubney [1977] IRLR 181. Conclusion One should note the difference between misconduct and gross misconduct. Gross misconduct refers to a very serious misconduct and therefore one should only be dismissed for gross misconduct if his behaviour is unacceptable and has damaged the employees’ reputation. Gross misconduct is seen to destroy the relationship between an employee and an employer. A company can terminate an employee from employment for gross misconduct but before doing so, it should consider whether the circumstance of the case is as trivial to warrant a dismissal. A company should engage itself in investigations that will be aimed at proving that indeed the conduct of the employee was gross and he had to be dismissed. There should be documentary evidence in support of an employer’s charge. Unfair dismissal arises when an employee initiates proceedings for the enforcement of a statutory right or when an employee has reason to belief that his or her statutory right has been infringed upon. If we consider the facts of the case, we see that there was indeed misconduct and non-performance on the part of the employee. The employer also made some omissions that could also cost him his case. To begin with, the employer dismissed the employee for non-performance. The circumstances of the case do show that indeed, there was non-performance but the employer did not explain this to the employee. What the employer did was merely to give the employee a notice but he did not afford the employee a reason for his dismissal. Secondly, we see that there was also no room given to the employee to explain his reason for non-performance. It is necessary for the company to allow the employee to explain his reasons for non-performance. Further, we look into the issue of alcoholism. This issue of alcoholism was only raised after the employee’s contract of employment had already been terminated. If the company raises gross misconduct on their claim it could be seen as a secondary reason for their dismissal as most of the facts pointing out to alcoholism were only discovered later. Additionally the company did not conduct its own investigation to prove that indeed the employee had a problem. These omissions are detrimental to the employer’s case. Reference List The Employment Rights act read together with the Employment Law. Read More