Employment Law Principles - Essay Example

?Employment law Introduction Interactions between members of a society involve initiatives that initiate rights and obligations. Similarly, interactions, when not regulated, may lead to breach of rights of parties. Law, defined as a set of rules and regulations, governs relations between parties in a society by establishing legal rights and wrongs. Employment law is a branch of law that regulates the relationship between parties in an employment contract. It stipulates rights and duties of both the employee and the employer with the aim of safeguarding interest of each party in an employment contract. This paper seeks to discuss the employment law. Based on a case, the paper will explore relevant legal principles in employment law with the aim of advising a party over possible claims. Facts of the case Kareen has been employed at Coombes & Partners architect firm for six years, a period in which she has served as a receptionist and has been offering exemplary services. Her mother is currently ill, having suffered from a stroke, and has for this reason moved to stay with her, forcing Kareen to double up as a care giver at home and an employee. As a result, Kareen wrote to her manager to request for a variation in working conditions that include change in reporting time and departure time. Besides request for fewer daily working hours, she also requested her working days to be reduced from five days a week to four. Her request was however rejected by her manager on grounds that her line of duty is normally busy during morning hours and that a late reporting time could not therefore be granted. The manager further noted that the organization’s policy does not allow receptionists to work on part time schedules. A male trainee, Audio, at the firm has also been making verbal suggestive advances towards Kareen. The trainee has also reportedly patted Kareen on her bottom, an act that offended her. Though she reported the issue to her manager, no action was taken. The trainee, then in a separate incident, tried to kiss her by force. In reaction, Kareen hit him forcing him to fall on a desk. Adio reported Kareen’s reaction and the manager summoned her for a hearing. In the hearing, that Kareen describes as intimidating, Adio accused her of hitting him without a reason and denied any sexual advancement towards her. The manager then gave her a dismissal letter to which she did not appeal due to her anger. Issue One of the issues to be determined in the case is existence of an employee’s right to a flexible working condition and the circumstances under which the employer can violate such a right. Another issue to be determined is existence of sexual harassment and the nature of liability that is induced by acts of sexual violence. Termination of an employment contract is also an issue for determination. Rules and application Kareen, as an employee, is legally entitled to flexible working conditions as provided for by the law and based on the facts that she has worked for the organization for a period of six years. Based on the provisions of the Employment Rights Act1, Kareen has a right to apply, to her employer, for an option to work under conditions that are more flexible. Such conditions may include shorter working hours or rescheduled timetable with respect to reporting times as well as the times at which she may leave work. Chandler explains that such a right would be extended to Kareen if she were a parent or a guardian who is responsible for the care of a child who is younger than six years or a minor who has been identified with a disability. Based on a written application, Coombes & Partners is therefore legally obliged to grant such request unless there are serious negative consequences that the enterprise may suffer for granting the flexible condition. Such reasons, however, must be communicated.2 Lewis and Thornbory however categorically specify that all employees are entitled to the right to flexible working condition if reason for application is for care of a relative. According to the authors, an employee is entitled to “change in working hours, times of work, or location” of work provided that such variations would allow the employee to undertake the needed care to the stipulated category of dependants as provided for by the employment rights act of the year 1996.3 Further, the Flexible Working Regulations of the year 20024 provide that no employee should be penalized for application for flexible working conditions. This further protects Kareen from any negative treatment by her employer for seeking flexible working conditions besides establishing strong ground for such request, being the care of her mother.5 Kareen’s right to application for flexible working conditions without implications from the employer was for example enforced in the case of Coleman v Attridge.6 In the case, an employee who had applied for flexible working conditions to enable her care for her disabled child was subjected to verbal abuse and at the same time denied the request. The court, upon the employee’s appeal held that the employer’s actions amounted to discrimination against which an employee is protected when applying for flexible working conditions. While Kareen was mot subjected to direct detriment by her manager, Piers, the manager’s negative attitudes towards her, including failure to respond to her reported case of sexual harassment and unfair trial in a case against Kareen implies detriment that could be attributed to her application for flexible working conditions. Similarly, the case of Qua v John Ford Morrison Solicitors7 illustrates an employee’s right to seek flexible working conditions in order to care for a dependant, not necessarily a child. The court held that statutory law grants an employee a right, without ill treatment from the employer, to manage any form of unexpected condition that affects a dependant.8 Qualifications for the right to application for flexible conditions however extend to other conditions. Kareen must for example be in a legal employment contract. Similarly, she must have worked with the employer for at least two years and two months. Since Kareen met these conditions, having been employed with the firm for six years, the law protects her right to flexible working condition.9 Further, an application for a flexible working condition should follow an established legal procedure for a mutual agreement. Chandler explains that once an employee has presented a written request for flexible conditions, the employer has a maximum of 28 days respond to the application. In case of rejection, the employer must organize a meeting with the applicant for deliberations in which the employer explains the reasons for which the condition cannot be granted and any possible change in the employee’s request. A final unfavorable decision that can be appealed by the applicant must then be communicated to the employee within two weeks. Piers, Kareen’s manager however did not provide for a meeting for deliberations on possible changes that Kareen could make to her request. While this established her right to appeal the manager’s decision, Kareen did not appeal, an implication that she consented to the manager’s decision. This therefore repudiated her interest in the particular application10. Another related legal element involved in Kareen’s application for flexible working condition is the set of reasons upon which Coombes & Partners could legally reject her application. One of such reasons is the involved extra operational cost. Similarly, the request can be denied if Kareen, under the proposed working arrangement, will not be able to meet the needs of her scope of work. Piers may also refuse to grant the request if it cannot be possible to find an employee to cover up for the changed schedule. Such conditions include inability to make local arrangement with other existing employees as well as lack of potential recruit another employee. These conditions give Coombes & Partners a right to reject the application for flexible working conditions. Coombes & Partners had and cited valid business reasons that included inability to make arrangement for sufficient cover and the intensive scope of work that could not be avoided during the morning hours. This justified the company’s decision not to grant flexible working condition. Further rejection of the request on these grounds would still be justified even if Piers called Kareen for deliberations.11 The facts of the case also suggest sexual harassment against Kareen. Sexual harassment is defined as unappreciated sexual advancement to a person. The legal definition of sexual harassment emphasizes on the position of the offender in relation to the offended party. As a result, the determination of the offense is not limited to the offended party’s objection of the act but the developed perception. There exist two elements of sexual harassment, “quid pro quo sexual harassment,”12 and “hostile environment sexual harassment.”13 Quid pro quo harassment involves unwanted sexual advances by a senior employee in an organization towards a subordinate. The sexual advancement is normally made with intentions of exchanging favors to the junior employee such as promotion or salary increment among other benefits. In order to prove a case under this class of sexual harassment, Kareen must establish a number of facts. She must for example prove that she belongs to a category that is vulnerable to sexual harassment. The vulnerability is relative to the sex of the offender, who should be a male in Kareen’s case. Kareen must also prove that she was subjected to a sexual conduct that was not appreciated. It is also essential to prove that her reactions to the alleged act changed her status at the work place and that the offender ought to have known of the consequences of the subject actions.14 Hostile environment sexual harassment however defines an employer’s liability over counts of sexual harassment that occur among employees due to the nature of the work environment that does not discourage such harassment initiatives. Similar to the quid pro quo sexual harassment, Kareen needs to prove essential elements that constitute sexual harassment such as existence of unappreciated sexually based advancement; sexual orientation of the subject act, effects on her working environment and the offender’s knowledge that the subject act could potentially constitute sexual harassment. The major principle for determination of sexual harassment after establishment of a sexual advancement is Kareen’s perception of the conduct. A perception that regards the “conduct as undesirable and offensive” therefore establishes liability over sexual harassment as opposed to when the advancement is welcomed. Such a decision was upheld in the case of Henson v City of Dunde.15 Hostile environment sexual harassment induces legal liability on the employer for failure to prevent such initiatives within the workplace. Coombes & Partners can however escape liability to the individual offender if the organization has well defined policy against sexual harassment as well as a ‘well-established’ procedure for determination of sexual harassment cases and disciplinary measures. The facts of the case that involves a fellow employee’s acts of sexual harassment together with the organization’s lack of initiatives to protect Kareen from sexual harassment means that she can either sue the employee, Adio, on his personal account or the employer, under vicarious liability, for failing to discourage sexual harassment at the workplace. The case of Bundy v Jackson16 for instance demonstrated an employer’s liability to sexual harassment suffered by an employee at the hands of a fellow employee due to hostile work environment. The case of Harris v Forklift systems17 also establishes ground for sexual harassment argument based on verbal advancements.18 Disciplinary measures due to misconducts such as harassment and violence should also be procedurally undertaken. While the Coombes & Partners has the right to dismiss Kareen for gross misconduct, such grounds must be proved. Termination of a running contract without proof of gross misconduct is therefore illegal.19 Conclusion: advice to Kareen While Kareen had a right to flexible working conditions and the procedure that her manager adopted upon rejecting her request was unlawful, her failure to appeal the decision terminated her legal interest in the particular application. Her claim to flexible working conditions is also limited by the organization’s business based reasons. Though she failed to appeal her dismissal to within the stipulated period, the dismissal was illegal ab initio and can be reversed because her reaction was based on ‘self-defense’. Kareen however has strong grounds for a sexual harassment claim against either Adio or the company. While Adio may be personally liable for his actions towards sexual harassment, the organization is vicariously liable for its failure to develop policies and procedures that discourages sexual harassment. She is likely to succeed in either suit because facts of the case satisfy elements of sexual harassment. She can also successfully sue for illegal termination of her employment contract. Bibliography Campbell, D. Employment Law, Volume 28. (Alphen, Netherlands: Kluwer Law International, 2007) Chandler, P., An A-Z of Employment Law: A Complete Reference Source for Managers (London, UK: Kogan Page Publishers, 2003) Lewis, J. & Thornbory, G. Employment Law and Occupational Health: A Practical Handbook (West Sussex, UK:John Wiley and Sons, 2010) Paludi, M. & Paludi, C. Academic and Workplace Sexual Harassment: A Handbook of Cultural, Social Science, Management, and Legal Perspectives. (West Port, CT:Greenwood Publishing Group, 2003) Read More