Dismissal: fair or unfair - Essay Example

? Topic: Lecturer: Presentation: Dismissal The employment law regulates the working relationship between the employer and employees as well as other stakeholders in the labour market. It guides employer and employees actions by defining their rights and responsibilities. It deals with issues such as wages, employee benefits and workplace health and safety among other issues. By offering employment to an employee, both parties enter into an employment contract which may be implied or expressed orally or in writing. However, it is required that a written contract be given to employees after two months of service stipulating the employment terms and conditions. Breach of such a contract by either party is a violation of employment law amounting to a dispute which can be settled by an employment tribunal or the court of law (Selwyn, 2008). The employer is not supposed to terminate such a contract without a written notice to the employee and without justification as it amounts to unfair dismissal but it depends on the type of employment relationship that exists between employer and employee. The employee may file for unfair dismissal with the employment tribunal which then investigates the facts and determines the outcome and if it is established that the employee was unfairly dismissed, he/she may be reinstated or compensated. Tom a personal trainer for Unfit ltd had worked for the company since April 2010 but came to work one morning to find that his contract had been terminated with immediate effect due to persistent poor job performance. In order to determine if Tom should claim unfair dismissal from Unfit, various issues should be put into consideration. The first issue is to determine what constitutes an unfair dismissal. The next step is to determine the employment status of Tom; whether he is an employee, worker or he is self-employed as per his agreement with the Human Resources Department. This is important as the employment status determines the employment rights of individuals such as the right to claim unfair dismissal. According to Lewis, Sargeant & Schwab (2011: 145), a person is treated as dismissed if “the contract under which he/she is employed is terminated with or without notice.” A dismissal can also occur if a fixed-term employment contract is not renewed under the same terms and conditions. An employee can also terminate his/her contract with or without notice as a result of an employer’s conduct which compels him/her to leave the organization. In this case the dismissal is referred as constructive dismissal. A dismissal may be fair or unfair depending on the circumstances under which the contract is terminated. A dismissal is considered fair if the right disciplinary and grievance procedures were followed and the matter was investigated fully before a decision was made. If it is a matter related to performance, the employer should warn the employee and give him ample time to improve and also provide all the necessary support needed to facilitate performance such as training and development to improve worker skills (Selwyn, 2008). If the employee does not improve, then the employer can dismiss him. An employee can also be dismissed in case of redundancy provided the right procedure is followed. The employer can also terminate the contract if he feels that the employee could not continue working in the same position without contravention on the part of employee or employer, of a duty or restriction imposed under a statute (Lewis & Sargeant, 2004: 15). The employer can also terminate an employment contract if he/she has substantial reason to justify the dismissal. However, the employer should give the employee ample notice as required by the law depending on the length of service. As per Section 92 of Employment Rights Act 1996, an employee who has worked continuously for one year has the right to be issued with a written statement within 14 days giving particulars of the reasons for dismissal. A person who has worked for more than one month deserves a one week notice before termination. A dismissal can be termed unfair for various reasons. If one is dismissed for being pregnant, for being a member of a trade union, on health and safety grounds, refusal to comply with requirements in contravention of employment regulations 1998, the dismissal is automatically unfair (Taylor & Emir, 2009). If an employee is dismissed for no good reason or without following fair dismissal procedures, then the dismissal is unfair and the employee has a right to claim unfair dismissal from employer. The employee should take up the issue with the employer and if it does not bear fruit, the employee can bring the matter to the attention of an employment tribunal within three months from the date of termination (Daniels, 2008). It will then be the burden of the employer to proof that there were justifiable reasons for dismissal. In order to claim for unfair dismissal, one has to have an employment status of an employee. The Employment Relations Act 1996 s 230(1) defines an employee as ‘an individual who has into or works under a contract of employment’ (Davies, 2004: 84). One has to fulfil a certain criteria to be considered as an employee. First, there has to be essential elements of mutuality of obligation and control. In this case, the person agrees to provide his own work and skills for performance of some duty for the employer in return for wages or any other remuneration. Tom was working as a personal trainer for Unfit Ltd and was under contract to provide such services personally and was guaranteed 20 sessions with the company’s members hence a mutual obligation existed. Secondly, the employer should have an element of control in performance of duties over the person for him to be an employee. In this case, Tom can be regarded as an employee since he had to obtain written permission from the gym club to get a substitute if he was unable to work due to sickness. The substitute had to be from the gyms other personal trainers and not from outside. Thirdly, the other provisions of the contract should be consistent with those of a contract of service. In this case, Tom’s contract details were not consistent with a contract of service. A contract of service requires the employer to deduct taxes and social security contributions from employees pay but Tom was personally responsible for his taxes and national insurance. The employer has also a statutory obligation to provide sick pay for employees but Tom was neither entitled to sick pay nor to membership of the company’s pension scheme. These contractual elements disqualify him from being an employee of Unfit Ltd. Moreover, Tom had agreed to work on a self-employed basis for tax purposes. However, as Lewis et al (2011) puts it, the intention of parties cannot be the sole determinant of a contract status. All other aspects of the employment relationship have to be scrutinized for an employment tribunal to determine whether the employee had a contract of service or contract for services. Furthermore, being self-employed for tax purposes does not prevent the employment tribunal from finding a person as having an employee status (Directgov, 2012). Other issues considered by the employment tribunal according to Directgov (2012) is whether the person was working personally rather than using substitutes, whether the person worked at the employers premises and with his equipments, and whether one works exclusively for the business and not for other clients. In Tom’s case, he had continuously worked for the company for almost two years and was required to wear the company uniform as well as use the company equipment and support staff. As such, Tom cannot be regarded as self-employed since he was not running his own business and takes risks of profit and loss and may hire his own employees (Davies, 2004). In the case of Hal v Lorimer, the court argued that one has to look at the whole picture and based on the fact that Hal worked on employer premises using the equipment of the employer, Hal was considered as an employee. It also argued that the fact that people pay own tax and national insurance is not used to determine employment status and that those who work at home can also be classed as employees. (Lewis & Sargeant, 2004).Tom could provide a substitute if not able to work hence could be regarded as not an employee but the fact that he was only able to be replaced by other gymnastics from Unfit Ltd disqualifies this claim. In light of this, I would advise Tom to file for an unfair dismissal since taking all matters into consideration; Tom could also be found to be an employee of Unfit Ltd and therefore has the right not to be dismissed unfairly. The dismissal was unfair because Tom had worked continuously for almost two years and therefore deserved a notice of two weeks prior to termination of his contract as per EPA 1998. Proper disciplinary procedures should have been followed in the decision to terminate his contract if his performance was not satisfactory. WORDS: 1505 Equality Act 2010 The Equality Act 2010 which came into law in October 2010 was established with the aim of reducing socio-economic inequalities, to reform and harmonize equality law, prohibit victimization, eliminate discrimination as well as increase equality of opportunity (Kelly et al. 2011). It has the same goals as the EU Equal Treatment Directive and ensures equal treatment in access to employment as well as private and public services regardless of protected characteristics (Great Britain, 2010). It also serves to join the various Acts and regulations which formed the basis of anti-discrimination law such as Equal Pay Act 1970, Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995, Employment Equality (religion or belief) regulations 2003 and Employment Equality (sexual orientation) Regulations 2003 and Employment Equality (Age) Regulations 2006. Some of the protected characteristics were extended, some remained the same, and some were changed while others were introduced for the first time (Selwyn 2008: 108-167). The protected characteristics include; age, disability, sex, sex orientation, gender reassignment, race, religion or belief, marriage and civil partnership. All these have implications for a public sector organization especially in managing employees. Equal Pay The Equal Pay Act 1970 adopted from EU Equal Pay Directive was to enhance equality in employment between men and women so as to reduce the gender gap. It also included aspects such as bonuses, holidays, and pension rights among others. The Act emphasizes equal pay for equal work such that if a woman performs work which is like that performed by a man, or both perform equivalent work or work of equal value, then the man and the woman should receive equal pay (Acas, 2012). In the case of Bromley & others v H& J Quick Ltd (1988) ICR623, CA, job evaluation scheme was to be used to determine whether there was a discrimination in pay based on sex by evaluating jobs in terms of demands made on the workers of both sexes (Chandler & Waud, 2003). According to this Act, the employees had the right to keep secrecy regarding worker remuneration (Kelly et al. 2011). In order to file a claim, the employee had to use a comparator of opposite sex performing similar work in the company or a similar company but due to secrecy of remuneration, it was difficult to know whether one is being discriminated or not. The Equality Act 1970 was repealed by Equality Act 2010 which requires employers to insert an equality clause into employment contract (Davies, 2004). The Act also gives employees the right to information regarding remuneration and the requirement for a comparator is not necessary in lodging unequal pay discrimination. Sex Discrimination The sex Discrimination Act 1975 prohibits direct discrimination of a person based on sex. A woman should not be treated unfairly or less favourably than a male on the basis of being a woman unless the discrimination is justified. The Act was repealed by Data Protection Act 1998, Equal Pay Act 1970 (amended 2003) and Employment Equality (Sex discrimination) regulations 2005 (Clarke, 2006). The 2005 Act required the use of an appropriate comparator to proof that they were discriminated against. It is also unlawful to victimize and harass someone based on sex. The Act was thereafter repealed by Equality Act 2010 which prohibits indirect and associative discrimination based on sex. Indirect discrimination occurs when rules and procedures of an organization even though not intended to discriminate a person lead to sex discrimination. Associative discrimination is discriminating someone for associating with an individual of a different sex. Since more women than men are involved in part-time jobs, this is considered as sex discrimination unless the employer can provide other grounds than sex. In the case of Gerster v Freaistaat Bayern, 2 Oct1997, ECJ, state civil service was sued for its requirement that part-time workers complete longer service before promotion than full-time employees. Since more that 87% were women ECJ ruled that the requirement amounted to indirect discrimination unless it’s justified on grounds unrelated to sex (Chandler & Waud, 2003). Age discrimination It is unlawful to directly and indirectly to treat someone less favourably due to age unless it is objectively justified. It is also unlawful to subject one to harassment, victimization or compulsory retirement as a result of age. The retirement age for public employees in the UK was 65 years hence one could not retire a person before that age. However, the Equality Act removed the upper age limits on issues to do with unfair dismissal and redundancy. In the case of Walton Centre for Neurology v Bewley, the evidence required the company to show that the implementation of retirement age corresponds to and achieves real business need and goes no further than necessary to achieve that need and that there is no other alternative to meet the need (Davis 2011: 186). Disability Discrimination Disability refers to physical or mental impairment which has an adverse effect on ability to carry out normal day-to-day activities. The Disability Discrimination Act 1995 prohibits direct discrimination of a person due to a disability. It also prohibits discrimination as a result of a consequence of disability unless objectively justified. The Equality Act 2010 repealed the Act by introducing changes and extending others. The Act introduced indirect discrimination, victimization and harassment due to disability. It also extended the prohibition to include associative discrimination whereby one is discriminated for associating with a disabled person. For example, in the case of Coleman v Attridge law and another 2008 extended old legislation to cover associative discrimination. Coleman the primary caregiver of her son claimed she was discriminated because of the disability of her son and the court decided that one did not have to be disabled to claim direct disability discrimination. Following the ruling, the labour government extended associative discrimination to other protected areas (Mehta, 2010). The claimant does not need a comparator to proof his/her claim and pre-employment health related checks are also prohibited (Davies, 2004). Racial Discrimination This was prohibited by the use of Race Relations Act 1976. It is unlawful to treat a person less favourably due to colour, nationality, ethnic or national origins (Selwyn, 2008). An employer cannot thus discriminate someone while recruiting, determining pay, discipline and grievance procedures, promotion and training due to difference in race. The Act 2010 extends the discrimination to include third parties whereby employer is responsible for acts of race discrimination by his employees. It also includes associative discrimination. However, the employer can discriminate if the job requires occupational requirement. Sexual orientation The Employment Equality (sexual orientation) Regulations 2003 repealed by the Act prohibit discrimination of someone on the basis of sexual orientation which refers to same sex, opposite sex, and either sex. It also prohibits indirect and associative discrimination as well as harassment and victimization (Directgov. 2012). Implications for Public Sector Organization The Equality Act 2010 has numerous implications for public sector organizations especially due to introduction of public sector equality duty which requires the employer to publish relevant information demonstrating compliance with Equality Act (Acas, 2012).The sector has to be very careful in its recruitment and selection activities to avoid discrimination. It cannot require employees or potential employees to provide some information such as age, health status, marital status, and sexual orientation. Requiring employees to have many years of experience on the job is discriminatory as it excludes young individuals (Daniels, 2008). The organizations also have to file reports regarding gender to ensure they are meeting equality standards. The managers have to think of how to treat people of different races, disabled, and others fairly and equally (Davies, 2011). They have also to transform the workplaces to accommodate disabled people. They are also liable to third party discrimination hence have to be more careful when discharging duties by employees. They are also required to provide services in a way that reduces inequalities resulting from socio-economic disadvantages. Recommendations The employers should formulate policies and procedures that ensure equal opportunity for all and to avoid indirect discrimination. They should also offer support services to the disabled and those undergoing gender reassignment. They should also ensure to keep equality reports to ascertain that they are adhering to rules and to show reason for discrimination in case of ‘occupational requirements.’ Offering equal pay for equal work is also essential. They should also consider discrimination laws in public appointments and while offering public services. Recruitment practices should aim at enhancing equality of opportunity and not to discriminate further. WORD COUNT: 1405 References 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. 2011. Workplace Law Handbook 2011: Employment Law and Human Resources. Cambridge: Workplace Law Group. Directgov. 2012. “Dismissal.”http://www.directgov.co.uk/en/empoyment/RedundancyAndLeavingYourJob/Dismissal/Index.html. Accessed March 17, 2012. Great Britain. 2010. “Equality Act 2010 Part 15.” www.legislation.gov.uk/ukpga/2010/contents Kelly D., Hayward, R., Hammer, R., Hendy, J. 2011. Business Law. Oxon: Routledge. Lewis, D., Sargeant, M. 2004. Essentials of Employment Law. 8ed. London: CIPD Lewis, D., Sargeant, M., Schwab, B. 2011. Essentials of Employment Law. 10ed. London: CIPD Mehta, R. 2010. “Legal Opinion: Association and Perception Under the Equality Act 2010.”Pesonnel Today. http://www.personneltoday.com/articles/2010/10/20/20156765/legal-opinion-association-and-perception-under-the-equality-act.html Accessed 20 March 2012. 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