Employment Law - Emergency Time Off to Care for Dependants - Essay Example

? Employment law Case I Emergency Time Off to Care for Dependants Introduction The right to unpaid time off for dependants is detailed in the Employment Rights Act 1996 (as amended by the Employment Relations Act 1999). The Act stipulates that all employees (irrespective if their span of service) are entitled to take a “reasonable” amount of unpaid time off work devoid of notice to deal with certain unexpected emergencies befalling their dependants (Memo 2005, p.968). A dependant in this case encompasses a husband, wife, civil partner, parent or child. The right for time off for dependants can be exercised in situations where a genuine emergency arises, to which the employee is not aware beforehand such as dependants falling ill or sustaining injury or assaulted (Cushway 2012, p.167). The nature of the right stipulates that the employee does not necessarily have to notify the employer in writing. However, they must notify the employer as soon as they have a chance to do so, while indicating the length of the period they anticipate being on leave (Hall 2003, p.140). If the employees beforehand know that they require a time off, they should inform the line managers and subsequently arrange to take time off as part and parcel of their annual leave entitlement (Smith & Thomas 2008, p.399). Employers who suspect that their employees are misusing the right to emergency time off may use normal disciplinary procedures to curb the abuse. Nevertheless, if the disciplinary procedures were to result to a dismissal, the employee can make a valid claim centring on automatic unfair dismissal provided that he or she convinces the tribunal that the dismissal arose from their assertion of statutory right (Chandler 2003, p.293). The analysis uses Cortest v O’Toole case, which centred on “reasonable” unpaid time off. The tribunal in this case ruled in favour of the employer; it stated that the employee does not possess the right to take up a month off to care for a child in circumstances where childcare arrangements have broken down. However, the ruling reinforces the right to time off when dealing with the immediate crisis (Holland & Burnett 2008, p.66). In events where the employee requires more time off, this can be accomplished through annual or parental leave. In this case, Bruce takes emergency time off, but his employer thinks that the time offs are not genuine. Owing to the characteristics of the provision and the fact that the categorization of the leave as unpaid, there is no limit as to the occasions when the employee can exercise the right (Gennard & Judge 2005, p.296). Besides, Bruce has taken a “reasonable” time off as the circumstances demonstrate. Bruce was responding to an immediate crisis and had fully informed the line manager of the emergency at hand. Royal Mail did not have a right to subject Bruce to disciplinary procedures or the written warning as Bruce did not abuse the statutory provision. The line manager had ascertained the precise reasons for Bruce taking the emergency leave and was aware of the length of the leave. There was no uncertainty on either party regarding the emergency time off; hence the disciplinary procedures taken against Bruce are unwarranted. In cases of subjection to a detriment owing to a request for emergency time off, the employee has a right to complain to an employment tribunal (Booty 2009, p.123). The refusal for Emergency leave or unreasonable victimization for taking the leave goes against the spirit of the Employment Rights Act. To remedy the situation, Bruce should discuss the issue with his line manager (as appropriate), and explore as to whether the matter can be resolved, probably through the grievance procedure. In the event that the employee fails to resolve the matter, Bruce should present a complaint to the employment tribunal as his employer has refused to comply fully with section 57A. By subjecting Bruce to disciplinary procedures, Royal Mail demonstrates unreasonable refusal to allow Bruce to take time off as stipulated by section 57A. Bruce should present a complaint to the tribunal in the period before the end of three months beginning with the date when the subjection to disciplinary procedures started. To this effect, the tribunal may rule the matter to be well founded or not, and subsequently make redress. If the tribunal rules in employees favour, Bruce may be compensated for the illegitimate disciplinary action. Bruce should not be penalized on the basis that the situation was known in advance. The appointment to the outpatient facility became an emergency when his mother could not be able to take the wife for the appointment. Subjecting Bruce to disciplinary procedures does not demonstrate fair and consistent treatment for all employees. Bruce had taken reasonable amount of time off to carry out an action that was necessary; besides, it was in essence short-term rather than a prolonged undertaking. Case II Introduction Flexible working relates to variations to the present timing, hours or location of a role, and encompasses working patterns shaped to match the requirements of either the business of the individual (Selwyn 2006, p. 69). Qualifying employees have the right to apply for contract variation in terms and conditions relating to working hours, as well as the workplace (Sargeant 2006, p. 204). The application for flexible working hours should be informed by an employee’s need to take care of a child, especially those not yet the age of the majority (18 years) or any other necessity. Parents with small children are entitled to work flexibly, if they so wish (Davies 2011, p.67). Although the right is not automatic, the right applies to persons with specified relationship; for example, parents, adopter, guardian, foster parent, or civil partner (White 2004, p.86). The employer has a duty to evaluate the application and should convene a meeting with the employee to deliberate on the application. Nevertheless, the employer does not necessarily have to grant the request provided that the employer avails grounds as stipulated by statutory requirements (Benny, Sargeant & Jefferson 2012, p.131). The discussion uses Commotion v Rutty as the background for analyzing the stated case. In this case, the EAT upheld the employment tribunal decision whereby the tribunal evaluated the ground on which the employer asserts for not granting the request. This is meant to establish that the grounds are factually correct. In some cases, the refusal for the request has led to a claim for indirect sex discrimination such as in Starmer v British Airways. In this case, the tribunal ruled that the company declined the request on the grounds of sex. In other cases, the refusal to allow flexible working hours may hinge on the claim of direct sex discrimination such as Walkingshaw v The John Martin Group. Mr. Walkingshaw had requested for part time so as to spend time with his son. The rejection of the request cantered on complexities within the case, a decision that led to his resignation. The tribunal ruled that employers had, in most of the times, responded favourably to applications from female employees for reduced working hours owing to family reasons (Abbot, Pendlebury & Wardman 2007, p.544). Response to Application for Flexible Working Hours To Miriam, Following your application for flexible working hours made twenty days ago, and the subsequent deliberations we had, I am afraid that I cannot agree to your request. The request for flexible working hours has been declined. Although the case meets a number of standards stipulated in the Employment Rights Act 1996, 80F, the application cannot be executed. Your application was turned down because it satisfies the following grounds that bars it from execution. The grounds, as stipulated by Employment Act 1996, 80G, are reasonable for declination. The denial does not hinge on cost grounds alone. Your application for working three days a week will herald additional costs to the firm, as it struggles to match the lost working hours. The request for flexibility in working hours will have a damaging effect on the capability of the firm to match the current customer demand, and will ultimately strain the firm’s human capital. In addition, the refusal arises from failure of the firm to reorganize work between the existing staff. The small size of the firm cannot support recruitment of new workers to match the shortfall. Currently, the revenue that the firm generates is low and cannot match the accompanying costs that will arise from the proposed flexible working hours. The proposed working hours will be injurious to the performance of the firm and that of the fellow workers, and ultimately on the quality of service to clients. Your position in the firm is of utmost importance to the overall health of the firm. As an assistant Solicitor, the post is critical to the smooth functionality of the firm. For instance, on occasions, the assistant Solicitor stands in for the manager, which means it would be impossible to carry out official business on the two days you are absent. Nevertheless, if my decision is unsatisfactory, you have a right to appeal against it within fourteen days from the day of receipt of this notification. I am expecting an appeal on decision (if any) within 14 days upon receiving the letter. I have convened a meeting scheduled to take place next week on 10th June, 2012. In exercising the right for appeal, you should set out the grounds of appeal as per Employment Rights Act. In the appeal, you should lay bare the grounds for the decision to appeal. The decision should be informed by sufficient explanations (Erickson, Stephenson, Bradley & Williams 2009, p.221). Yours Faithfully, John. References List Abbot, K., Pendlebury, N. & Wardman, K. (2007). Business Law, Newgen, Thomson. p.544. Benny, R., Sargeant, M. & Jefferson, M. (2012). Q & A Employment Law 2012 and 2013, New York, Oxford University Press. p.131. Booty, F. (2009). Facilities management, Burlington, Elsevier. pp.123-125. Chandler, P. (2003). Waud’s employment Law: The practical guide for personnel managers, Trade Union officials, employers, employees and lawyers, London, Kogan Page. pp.293-297. Cushway, B. (2012). The employer’s handbook 2012-13: An essential guide to employment law, personnel policies and procedures, London, Kogan Page. p.167. Davies, A. (2011). Workplace Law handbook 2011: Employment Law and human resources, Cambridge, Workplace Law Group. pp.67. Erickson, M., Stephenson, C., Bradley, L. & Williams, S. (2009). Business in society, Cambridge, Polity Press. p.221. Gennard, J. & Judge, G. (2005). Employee Relations, Norfolk, Cromwell. p.296. Hall, A. (2003). Managing people, Berkshire, McGraw-Hill. p.140. Holland, J. & Burnett, S. (2008). Employment Law 2008, New York, Oxford University Press. p.66. Memo, F. (2005). Employment 2006: Law and practice, human resources, London, FL MEMO. pp.968-970. Sargeant, M. (2006). Age discrimination in employment, Volume 13, Hampshire, Ashgate. p.204. Selwyn, N. (2006). Selwyn’s Law of employment, New York, Oxford University Press. p.69. Smith, I. & Thomas, G. (2008). Smith’s & Wood’s Employment Law, Oxford, Oxford University Press. p.399. White, V. (2004). BTEC Introduction to IT at work, Oxford, Heinemann Educational Publishers. pp.86-90. Read More