Employment law in UK - Essay Example

? Employment Law No: Roll No: Word Count: 1440 Tom worked as a personal trainer for Unfit Ltd, a prestigious gym club located in Jesmond, in Newcastle. He had worked for the company since April 2010. His contract contained the following terms: He was required to wear a uniform supplied by Unfit Ltd. He was required to use the company’s equipment and support staff. He was guaranteed a minimum of 20 sessions with the company’s members. He was not entitled to sick pay or membership of the company’s pension scheme In the event that he was unable to work due to sickness, he could substitute himself with one of the company’s other personal trainers, on receipt of written permission from Unfit Ltd. He was responsible for paying his own tax and national insurance: the Human Resources Department had asked him last month if he would prefer to work on a self-employed basis, saying that he would pay lass tax. Tom agreed to this. This morning Tom came into work and was informed that his contract with Unfit Ltd had been terminated with immediate effect due to persistent poor job performance. Required: Looking carefully at the scenario above, advise Tom as to whether or not he may be able to claim unfair dismissal from Unfit. Introduction Procedures of termination of employment in terms of poor performance vary from country to country, state to state around the globe. In the United States of America, it is very convenient for an employer to terminate the employee without taking into consideration any specific pre termination procedure. However, in the case of an expatriate employee who is on an assignment in the UK, the employer has to comply with the pre termination procedures irrespective of the fact that the pre termination procedures are in existence in the host country of an employee or not (Holland and Burnett, 2008). Employment Relationship If we compare with employment procedures of the two major countries of the world namely USA and UK, we may observe the important difference between the USA and the UK employment procedures are that in the UK an employer cannot fire an employee at will. They believe that the relationship between the employer and the employee is always contractual in nature whether written contract between the employer and the employee exists or not (Perritt, 2006). The other distinctive factor is that in the UK employer is bound to serve show cause to an employee as a first step of pre termination process. In the American law there is no concept of serving any notice to an employee before termination of employment. In England notice is a pre requisite of termination process. The employment of contract should contain the notice mutually agreed upon by the stakeholders of a contract employment. If contract of employment lacks notice period then the competent court of law comes forward to determine that period. Usually it should be at least one weak for each and every completed year of employment that culminates up to twelve weeks at a maximum (Holland and Burnett, 2008). As per UK law, termination or dismissal of employment of an employee without any cogent reason and without serving any notice may attract penal action / damages claim against the employer. The damages claim depends on the length of service of an employee. If the period is longer the claim is bigger and if the tenure is shorter the claim would be shorter. Under the mentioned situation the employee should knock the door of the competent court of law to claim compensation (Taylor and Emir, 2009). Unfair Dismissal In England, if an employee performs satisfactorily the whole year he or she may have the statutory rights. It means that he or she cannot be dismissed or terminated. The burden of unfair dismissal lies on the shoulder of an employer. The deficiencies of an employee which may lead to his or her dismissal are a) incapable b) less qualified c) misconduct and d) breach of statute (Holland and Burnett, 2008). Initially the procedures to protect the employee from unfair dismissal from employment by the employer came into being in the year 2004 through legislation. The procedures in question were not accepted wholeheartedly by the employers. Contrary to the American employer, the UK employer has to justify his or her action to dismiss or terminate the employment of an employee. The employer may not terminate the employment at sweet will. The UK employer has to adopt the correct procedures before firing of an employee. The mentioned procedures are to be implemented before termination or dismissal of an employee (Holland and Burnett, 2008): Stage One: Employer should notify the allegations the employee before inviting him for necessary clarifications. Stage Two: After the proposed meeting the employee may have the opportunity to be with his or her colleague or representative of bargaining agent. The employee should notify his or her choice. Stage Three: If an employee desires to hold an appeal meeting, she or he may accompany with someone of his or her own choice. In that she or he should notify her or his decision to the employer. In case an employee is abruptly / unfairly terminated, the immediate remedy available to him should be financial compensation. However, the amount of compensation will purely depend on the financial loss of an employee. Further, how could an employee get well paid job so quickly to have food and shelter for him and family. In the UK for all sorts of unfair dismissal, the statutory compensatory limit is around 60600 GBPs (Holland and Burnett, 2008). Irrespective of few continental countries, in UK employers cannot be forced to get back the employee who have been dismissed or terminated (Perritt, 2006). Employment tribunal seldom order for the re-instatement of terminated employee. However, the tribunal of employment frequently orders for compensation against damages keeping in mind the financial loss that the employee suffered at the hands of an employer (Caisley, 2008). Dismissing Employees for Poor Performance Terminating or dismissing a senior level position in the UK on the grounds of poor performance is not an easy task for the employer. It always carries a significant risk for employer from the employee in terms of substantial claims (Perritt, 2006). However, it is difficult to have a tentative list of such sort of poor performance which may help the employer to terminate the employee. Hence, the dismissal varies on case to case basis. It all depends on the circumstances of individual performance. As far as the general applicable rule is concerned, the UK competent court of law or Employment tribunal required clear evidence of poor performance. The employer cannot blame the middle management or the lower management for the follies of senior management. The senior management cannot make an employee a sacrificial goat for the failure of their strategies. The dismissal should not smack of professional difference or personality clash with high ups. Therefore, the employer must have solid reasons to sack an employee (Caisley, 2008). Contractual claims in relation to contractual obligations will be easily defend in the court of law provided the contract is very much clear in terms and conditions of the employment. But in the case of senior positions it is clearly mentioned in the contract of employment if the employee fails to perform according to standard criterion set by the Board of Directors may be terminated without serving any notice. Ideally in the senior position, the employer should identify the grey area or areas of the employee where further improvement is or are required before termination to meet the needs of natural justice (Caisley, 2008). To get rid of poor performer and to avoid expected legal action, the employer quietly offer such employee “severance package” to amicably settle down the matter out of the court. Further many employers who intend to part with the poor performer as soon as possible offer them lucrative package as full and final settlement (Perritt, 2006). According to the prevailing UK law, the separated employee should seek legal advice on compromise Agreement, well before signing the agreement provided by the employer. It is general practice in the UK that the employer bears the cost of legal advice (Taylor and Emir, 2009). It is a moral obligation of a country while terminating the employee of another country who is on international assignment should respect and follow the pre-specific termination procedures of that country. The statutory right of an employee in the UK requires fair dismissal trial in order to ascertain the poor performance of an alleged employee to meet the statutory requirement. It is incumbent upon the employer to provide standard set of performance documents prior to joining an employee in order to judge good or bad performance of an employee. Merely losing confidence in an employee that he or she will not deliver is insufficient to sack him on the grounds of poor performance. As a step forward the employer should follow a multiple procedures before making a final decision for termination of an employee. Cautious approach should be adopted by the employer to terminate the employee who hails from foreign country on an International assignment (Holland and Burnett, 2008). It is the need of the hour that the employer must have clear and well drafted document in terms of employment. This will strengthen the position of an employer in the court of law. Conclusion We have discussed threadbare the legal position of an employee and the employer as per UK law. Therefore, according to UK law, Mr. Tom being a sacked employee whose services have been terminated by his employer without assigning any reason and without serving prior notice may claim compensation from Unfit, the employer, for his unfair dismissal. He may invoke the competent jurisdiction for compensation. Bibliography Caisley, Kiely T., 2008. Termination of Employment: A Best Practice Guide. Auckland: CCH New Zealand Limited. Holland, J. and Burnett, S., 2008. Employment Law: Legal Practice Course Guides. Oxford: Oxford University Press. Perritt, Henry H., 2006. Employee Dismissal Law and Practice. New York: Aspen Publishers. Taylor, S. and Emir, A., 2009. Employment Law: An Introduction. Oxford: Oxford University Press. Word Count: 1425 2. You have been asked as graduate trainee manager to prepare a report for the Chief Executive of a public organization (Tyneside Council) about the implications of the Equality Act 2010.Your report should be set out in report format. The report should outline the background to the Equality Act 2010. This should be illustrated by case law for all areas of discrimination. It should clearly explain the implications for a public sector organization in meeting the requirements of the Equality Act 2010. It should make recommendations to ensure that the Council does not find itself financially liable by being in breach of the legislation. Report about the Implications of the Equality Act 2010 The Chief Executive, Tyneside Council, London Dear Sir, Implications of Equality Act 2010 in Public Sector Organization Attached herewith please find a detailed report on the Equality Act 2010 which carries general duties, specific duties meant for meeting social responsibilities by the Public Sector Organization. Non compliance of the mentioned act surely invites the wrath of the government functionaries as and when the public sector organization failed / miserably failed to discharge its obligations under the Equality Act 2010. Further, we have cited three (3) law cases for ease of reference in this report, in which the competent courts declared the decisions of the members of the councils as null and void since the decisions were found contrary to the instructions / directives contained in the said Act. Please peruse the contents of mentioned report for your necessary instructions and guidance to proceed further in the matter. Faithfully Yours XYZ The Equality Act 2010 is in fact is the amalgamation of series of anti discriminatory laws previously introduced. This act came into being on October 01 2010. The aims and objectives of mentioned act are given which is known as public sector equality duty to consider and ensure transparency in carrying out their functional responsibilities especially in the areas of policies and decision making process. This will definitely reduce the bureaucratic approach in day to day affairs and to ensure efficiency in their subordinates divisions and department (Davies, 2011). According to Holland (2010), “the Act is a piece of anti-discrimination legislation which offers legal protection. It does not confer ‘rights’ as such on individuals instead defines where discrimination might occur as well as placing duties on organisations and in some case individuals to act in order to prevent discrimination” (pg. 9). The important features of mentioned act are as under: a) War against discriminatory attitude, harassment of all sorts and the victimization at the hands of influential b) ensure equal opportunity to haves and have-nots c) promote good relationships between have and the have-nots (Duggan, 2010). In my considered opinion the Equality Act 2010 is a master piece of legislation which will influence all organizations irrespective of the fact whether it falls within the ambit of private sector enterprises or within the purview of public sector enterprises in the days to come. The mentioned legislation creates harmony amongst the employees of public sector organizations. Equal Pay Acas (2012) informs that the Equal Pay Act 1970 that was extracted from EU Equal Pay Directive was there to ensure that the workers working in a place are provided with equal employment opportunities without keeping any gender based discrimination between male and female employees. This act took into consideration all crucial benefits of employment like bonus packages, leave options, pension benefits, allowances and much more. It was ensured that all the employees working similar tasks should be facilitated with equal pay and there will be no discrimination between men and women (Acas, 2012). For same work, the pay will be same. According to Chandler and Waud (2003), the case of Bromley & others v H& J Quick Ltd (1988) ICR623, CA is informative about the job evaluation scheme that should be there in order to evaluate the presence of discrimination among sexes in the workplace. The employees are facilitated to enjoy their right to maintain their privacy in terms of their payment or allowances. In addition, the employees are also able to file claims regarding any kind of discrimination but when the employees have the right to maintain their privacy, it is difficult to analyze the presence of discrimination in the workplace. However, the claim can be filed with the support of a person opposite in sex. Sex Discrimination According to the sex Discrimination Act 1975, discrimination of an individual on the basis of sex is restricted. There is no justification of unfair treatment of a woman based on her sex and there should be no provision of upper edge to male employees. The same act was further taken by other acts formed on the basis of equality such as Equal Pay Act 1970 and Employment Equality (Sex Discrimination) regulations 2005 (Clarke, 2006). Harassment, persecution and any form of unfair behaviour based on sex comes under the category discrimination and is thoroughly prohibited per 2005 Act. Associative discrimination, which is there on the basis of sex is also restricted under the Equality Act 2010. Direct as well as indirect discrimination in terms of sec, both are prohibited and the rules and regulations of an organization should be created such that they are not discriminating employees sexually. Anyone should not be restricted on the basis of his association with any person of opposite sex. Women are more employed as part time workers as compared to men and this is regarded as an act of discrimination. An example of the case of Gerster v Freaistaat Bayern, 2 Oct1997, ECJ, can be taken according to which, legal action was taken against state civil service as it required the part time workers to work for more hours to gain promotion as compared to full time workers. It was also reported that the workers were mostly women as a ratio of eighty seven percent was found working as part time workers. Therefore, the act was regarded as an indirect discrimination (Chandler & Waud, 2003). Age Discrimination Any person should not be discriminated on the basis of his age as it is unlawful. Unfair or less favourable treatment should not be there towards a person based on his age. Harassment, victimization, forced retirement, or any other kind of prosecution as a consequence of age is prohibited under equality act. According to Davies (2011), forced retirement before sixty five years of age in UK is strictly unlawful as the age of a person at retirement should be sixty five. The upper age limit in terms of ill-treatment of employees by dismissing them or reducing the strength is eradicated by the Equality Act. An example of Walton Centre for Neurology v Bewley can be taken according to which, the retirement age should be according to the business requirements and as a compulsion, there should not be any other way to met the requirements of the business. In that retirement should be there (Davies, 2011). Disability Discrimination Disability of any kind such as physical or psychological disturbance or mutilation becomes a reason for defected functionalities in everyday working. According to the Disability Discrimination Act 1995, any person who is disabled due to any reason should not be discriminated restrictedly. There is no justification against discriminative attitude towards the disabled. A kind of discrimination is associative discrimination in which, a person who is linked to any disabled person faces discrimination. Such kind of discrimination is also strictly prohibited under the disability discrimination act. According to Davies (2004), Coleman faced the issue of associative discrimination because of her disabled son while she was not disabled herself. After hearing the case of Coleman, the court gave the decision that the employer should not make her a victim of disability discrimination. The labour government also provided rules against associated discrimination. In addition, the employer has no right to ask for any health check or proof of fitness from the employee as it comes under the category of discrimination. Racial Discrimination Racial discrimination is strongly prohibited according to the Race Relations Act 1976. According to Selwyn (2008), any person should not be treated unfairly based on his race, colour, orientation, faith, ethnic background, culture or any other national or local identity. Any kind of racial discrimination is unlawful. Therefore, an employer cannot do any kind of discrimination in his recruitment, payment evaluation, maintenance of discipline, promotion, provision of training and other procedures. Implications for Public Sector Organization The public sector organization shall publish the evidence of its measures that took place on employees and those who are responsible for its promotion. The organizations have to ensure that they are functioning as per the Equality Act 2010 (Duggan, 2010). While recruiting and choosing employees for the organizations, much care needs to be taken to shun discrimination. The information about age, sexual interests, health state, marital status are not required to be provided by new or old employees. Even if the employees are asked about their age or work experience, it is also an act of discrimination as according to Daniels (2008), such discrimination snatches the rights of young people interested in employment. As mentioned earlier on, there should be reportage of gender based equality to ensure that equal standards are maintained for both the sexes. The administration of the organizations are required to set a proper strategy about dealing with people belonging to diverse races and who are handicapped in order to provide them equal and fair treatment (Davies, 2011). The workplaces are required to be changed to facilitate handicapped individuals. The facilities and services that are to be provided to people should be provided in an order that reduces inequality that is a result of socioeconomic underprivileged status of people. Recommendations The policies and procedures that are to be structured by the employers should be accommodative for the employees and should be able to ensure that all the employees are able to get equal opportunities and there is no discrimination in the decisions of the employers. The facilities that are allocated for the disabled and gender based should be provided to the people. In addition, there should be reportage of equality based on procedures and policies designed by the employer so that there is no more reason for any kind of discrimination. Offering equal pay for equal work is essential. They should also consider discrimination laws in public appointments and offering public services. Recruitment practices should aim at enhancing equality of opportunity and a level play field to all. Bibliography Acas. 2012. “The Equality Act 2010.” http://www.acas.org.uk/index.aspx?arcleid=1363 Accessed March 20, 2012. Chandler, P. & Waud, C. 2003. Waud’s Employment Law: The Practical Guide for Human Resource Managers. 14ed. UK: Kogan Page. Clarke, L. 2006. “Harassment, Sexual Harassment, and the Employment Equality (Sex Discrimination) Regulations 2005”. Industrial Law Journal, Vol. 35(2): 161-178. Daniels, K. 2008. Employment Law: An Introduction for Human Resources and Business Students. London: CIPD. Davies, A. 2004. Perspectives on Labour Law. Cambridge: Cambridge University Press. Davies, A. (ed.)., 2011. Workplace Law Handbook 2011: Employment Law and Human Resources. Cambridge: Workplace Law Group. Duggan, M., 2010. Equality Act 2010: A Guide to the New Law. London: Law Society. Holland, R., 2010. Equality Act 2010. The Skill Journal. Selwyn, N. 2008. Selwyn’s Law on Employment. 15ed. UK: LexisNexis. Taylor, S., Emir, A. 2009. Employment Law: An Introduction. 2ed. Oxford: Oxford University Press. Read More