MSc Human Resource Management - Essay Example

? MSc Human Resource Management Research Assignment Task This section of the paper will examine three cases involving a hypothetical company, Silkweave Limited. Silkweave produces carpets and high quality rugs for export. The company has taken a number of decisions relating to three employees. This section would examine the appropriateness of these decisions in relation to aspects of UK employment law and advise the company. The areas handled include Unfair Dismissal and Discrimination. Case 1: Tina Tina was laid off and given just ?50 to cover her holiday expenses. The main legal pointers to analyse include whether Tina qualified for protection as an employee and whether the dismissal was fair or not as well as the question of whether she experienced discrimination or not. Principles According to Section 1 (2) of the Employment Rights Act (ERA) (1996), a person categorised as an employee has rights and the termination of his appointment must come with some degree of sensitivity. Dismissals can only be carried out in cases where the employee is at fault in relation to some key legal indicators (Kelly, 1997). In a case where the employee's appointment is to be terminated because his or her contribution is not required, that situation must be categorised as a 'redundancy' (ERA 1996). Terminations require at least 1 week notice (Section 134 ERA, 1996). The basis for the termination must be reasonable (86, ERA, 1996). In the case of a redundancy, there must be some redundancy payments made to the affected employee (Section 135, ERA, 1996). The payment is required for people who have worked for at least 1 years for the same employer (Section 155, ERA, 1996). The formula for calculating redundancy payment varies for different people. For persons under the age of 21, redundancy payments should be half-a-week's wages for each year spent as an employee. For persons between 21 and 40 years it is a week's wage for each year spent as an employee with the company and for persons above age 40, it is one and a half week's wages for each year. The ceiling for this calculation is the minimum wage, which currently stands at ?430. The Prevention of Less Favourable Treatment Act (PLFT) of 2000 maintains the need for fair treatment for part time workers. Application In Ready Mixed Concrete V MSS it was identified that there is a distinction between 'contract of service' and 'contract for service'. The former suggests an individual is an employee whilst the latter implies the individuals is rendering his service as a self-employed individual or independent contractor. In doing this, the court ascertains whether an individual was in business on his own accord or not (Market Investigations V MSS 1969). Other pointers include the contractual provisions (BSM 1257 V Secretary of State), the degree of control exercised by the employer, the obligation of the employer to provide work, the obligation of the 'employee' to work and the opportunity for 'employee' to work for other employers. Also, the mutuality of the obligation between the two parties is vital. Tina has been a worker for Silkweave for the past 3 years. Although there is no formal employment contract between her and Silkweave, the company seem to have some degree of control over her activities (Global Plant Ltd V Secretary of State for Health & Social Security). The company seem to provide work for her and when she is unable to do it, she arranges for her sister to take over. This means that in practice, Silkweave has a contract of employment with her since she has been solely responsible for the cleaning of Silkweave's premises. It is not likely that Tina provides the cleaning equipment and materials for the cleaning by herself. According to Carmichael V National Power PLC where the employee provides her own materials for the work, she is likely to be self-employed or an independent contractor. However in the case, of Tina, it seems she gets inputs from Silkweave and that makes her more of an employee than an independent contractor. Also, the PLFT Act of 2000 provides Tina the right to be treated under the ERA of 1996 like any other full time employee. This means that it would be simplistic and illegal for her to be dismissed without regards to the proper procedures. In this sense, her termination should have been considered as a redundancy. This means that she should have been notified at least one week before her appointment ended. In this case, Keith's letter arranging the meeting with her and the attempt to remove her from the premises of Silkweave is illegal. Conclusion Tina has rights under the ERA and she must be given some compensation for her effort and given time to end the contract. Tina has the right to be compensated under the ERA. This is because she qualifies for some redundancy benefits. Recommendation Based on the facts of this case, I recommend that Silkweave should pay adequate compensation to Tina for her contributions to the company. The payment of ?50 is woefully inadequate. After spending three years with Silkweave, she is entitled to a compensation of three payments for her years spent with the company. Depending on her age, she would have to be paid either half, full or one and a half of her weekly salary of ?120. She would receive three separate payments and this would amount to ?360 if she is between the ages of 21 and 40. Case 2: Andrew The main issues of this case relate to whether Andrew qualifies as an employee or not and if he does, there is a question of whether he is being harassed or not. The conduct of Mary is also in question. It is necessary to ascertain whether they amount to discrimination or not. Also, there is an uncertainty about whether his absence of work constitutes constructive dismissal. Principles The European Union's Equal Treatment Directives requires member states to eliminate all forms of discrimination in the work environment. The Equality Act of 2010 makes it illegal for discrimination to be meted out against employees on the grounds of racial features, origins, beliefs, sexual orientation and other social classifications (Davies, 2011). The Equality Act states in Section 40 (1) that employers may not harass their employees in the work place. Also, Section 27 states that victimisation on the basis of sexual orientation is illegal. There is the case of direct discrimination which involves direct actions aimed at doing these things. There is also indirect discrimination which revolves around the setting of tough criteria to discriminate against people in an undesired social classification. In Showboat Entertainment V Owens it was ruled that an individual who refuses to carry out an instruction that is discriminatory in the work place cannot be sanctioned by his employers. This means that discrimination is illegal and people must take care in their individual capacities to avoid perpetrating them even if it is required of them. Constructive dismissal refers to a case where an employer's act is so serious enough to cause the employee to stop working with them (Moffat, 2010). Constructive dismissal is considered as an unfair dismissal (Streicher, 2011). An employer is liable to vicarious liabilities if an employee commits an act that leads to an action in tort (Income Data Services, 2011). Application From Carmichael V National Power PLC, 1999, the mutuality of an employment agreement provides guarantee that a person was an employee not self-employed. Andrew has a mutual agreement with Silkweave and can be seen as an employee under ERA (1996). This is because he has access to a given section of the company, which is the website. To be considered an employee, a person needs to have a contract with an entity that binds him to that entity (Selwyn, 2006) and there should be a limited right to work for other employers (WHPT Housing V Secretary of State). Andrew seem to have an employment contract and he has been working with them since July 2011 which is over a year. Hence, he has the rights of an employee under the ERA of 1996. From the case of James V Eastleigh Borough Council it was established that in every case, the conduct of the person accused of discrimination should be examined on the basis of the 'but for' test. The email that was sent to Andrew by Mary asking him to “be a man” is a form of harassment and victimisation. This is because it is not likely that she would have sent such a mail if she did not know he was gay. This mail suggests that Andrew is frail and he must toughen up and become a heterosexual. This is a form of direct discrimination and victimisation because he is set part for this In Coleman V Attridge, it was held that a woman with a sick child who was accused of using her ‘fucking child’ to seek changes in schedule was made to face indirect discrimination. The changes in Andrew’s schedule seem to be an indirect form of discrimination because Mary's refusal to hear her seem to be out of resentment. And as such is illegal. These persecutions have made Andrew's life in Silkweave unbearable and this has led to a constructive dismissal. That is why stayed home for 5 days. Silkweave is liable for the actions of Mary because she acted as an agent for the company and has shown discrimination. This means that Andrew can get some kind of redress through a tribunal to address the issue. Conclusion Silkweave is liable for the discrimination meted out by Mary to Andrew. Hence, they need to take reasonable steps to avert crises and problems that would come out of this. Recommendations A strong warning should be sent to Mary by the management of Silkweave. They will be liable to paying compensation if Andrew sues for constructive dismissal. Hence, they should try to resolve the dispute in-house and change the work environment by training the staff, particularly Mary on the dangers of discrimination and social exclusion. She should be aware of what constitutes harassment and victimisation and she should be warned to desist from this in the future. On the other hand, Andrew can also sue Silkweave for discrimination and maintaining a negative and detrimental work environment. This would culminate in the collection of damages and the changes in the work environment of Silkweave. Case 3: Doreen This case revolves around the status of Doreen as an employee. And the procedure for dismissal that was most appropriate in this case. This section also examines the position of Doreen in relation to her liabilities and the liabilities of her supervisor in relation to allowing her to take samples home. Principles Morgan and Carter identify that in an employment relationship, the employee agrees to work with the employer according to the principles of fidelity, cooperation, obedience and due diligence (2002). In decided cases, it was held that employer-employee relations are to be viewed as bound by reasonable behaviour (Malik V BCCI and Courtaulds Northern Textiles Ltd V Andrews). In this sense, no action should be treated without proper investigations and the viewing of procedures (Lockton, 2011). According to Armstrong, the standard procedure for dealing with disciplinary problems in a firm involve the establishment of the offence, the gathering of evidence, use of clearly laid down procedures that are known to the employer and employee, allow the employee to know the charges against him, conduct a hearing and provide room for appeal (2012). When adverse findings are made, the employer needs to go through several stages of dealing with negative acts of employees. This include: informal warning, if it persists, formal warning, if other issues come up in relation to the matter there is further disciplinary actions like suspension or dismissal (Armstrong, 2012). This means that it is not appropriate for dismissals to be used as a first means of dealing with problems. The Employment Act of 2002 indicates that employment dismissals must follow statutory disciplinary procedures. If an employee is not satisfied with the results, he can appeal through the grievance procedures in-house. If he is still not satisfied, he can proceed to file the case with an employment tribunal. (Daniels, 2006). Application Doreen has been with Silkweave for 17 years. And she is over 43 years old. She earns a respectable salary and it can be assumed that she has worked without issues for the 17 years she has been with the company. In that case, she must be viewed as a person who gas remained committed to the company for all these years. It is therefore wrong to assume that she can just change overnight. On this background, it would be wrong to summarily dismiss her. In Polkey Versus Dayton Services the House of Lords upheld the importance of the use of procedures for handling misconducts. Dismissal was supposed to be used only in exceptional cases. In W Weddel & Co Ltd v Tepper a threefold test was developed for dismissals. This was: 1. Did the employee believe in the reason for dismissal? 2. Was there a reasonable ground? 3. Was there conclusive investigations? Doreen should have gone through a normal procedure where the management of Silkweave would have told her that she is charged with theft. And she had to come to face them and explain why disciplinary action should not be taken against her. This should have led to a situation where evidence would have been pointed out to her and she would have also argued why it was not a theft but something else. In such a situation, the side of Doreen would have been heard prior to any action. If the management still believed she was wrong, she should have been given a less harsh punishment like a warning or a suspension. And in any of the cases, Doreen could appeal. If the appeals were not heard, she could send the case to an employment tribunal. Jumping to a dismissal is too harsh and could have legal consequences for Silkweave if she takes up the case up in court as she is planning to do. If Doreen is able to prove that her supervisor had allowed her to take samples home in the past, then the obligation would be upon the supervisor and not Doreen. Conclusion It is inappropriate for Silkweave to dismiss her. This would fall into the category of unfair dismissals and it could have a legal action. Recommendation Silkweave should immediately send a letter to Doreen clarifying that she is not dismissed. They should form a committee to examine the case. In this, they should ask Doreen why she is not liable to action by the company. If it is necessary, her supervisor should be queried. If Doreen is found guilty, she could be given a warning or a suspension. Dismissals should not be encouraged at this stage as it would lead to serious legal consequences. Task 2 Comparative analysis of Employment Termination in UK Law and Chinese Law The UK, the termination of employment is controlled by the Employment Rights Act of 1996. The Act makes it legal for employments to be terminated by employers with or without notice (Section 95) or by consensus or unilaterally by employees. However, the unilateral termination by employers and employees can lead to rights by the aggrieved party that can lead to legal action. In China, employment termination is mainly controlled by the Labour Contract Law of 2007. Article 44 of the law states that termination can be done on one of six grounds. The first is the expiration of the term of a contract. The next is the natural retirement of an employee due to old age. The third method is the death or the declaration of an employee by a People's Court. When an employer is declared bankrupt, employments are terminated. Additionally, when an employer's business license is revoked. The sixth reason relates to specific laws or administrative regulations that may be issued by an appropriate authority in the nation (Hunter et al, 2010). These laws are similar to UK laws. Although the expiration of contracts and bankruptcy are recognized under the Employment Rights Act, other things like pensions and court orders are implied in UK law. The sixth reason is also implied in UK law, however, its entrenchment in Chinese law shows the power and extent of authority of the state in China. In the UK most of the principles and fundamental guidelines are unwritten and legal redress can be sought for individual expectations and needs. In China, most of these hearings are based on the government and authorities' view of how things must be done. In the case of redundancy, an employer needs to provide a 30 day notification. If this cannot be done, they must pay pay economic compensation according to Articke 46 of the Chinese Labour Contract Law. This is one month pay in lieu of the 30-day notice (Article 46). This differs from the UK position where the employee should get an average of month's pay for each year he worked for the company. In most exceptional cases where there might be a genuine need for a large compensation, Article 28 stipulates that the compensation should not exceed the 12 months pay of the employee in question. The ceiling in the UK is in relation to the minimum wage after tax as the basis of the calculation of the monthly salary. This formula is used for people who have worked for between 1 to 12 years. This means that the 12 months ceiling of the Chinese government is similar to the model used by the UK. In case the employee is on probation, then there could be a termination within a three-day notice period. In most of such cases, there is the need to pay severance pay which should be minimal and must reflect an attempt to remain fair and considerate (Moser, 2010). References Armstrong, M. (2012) Armstrong's Handbook of Human Resource Practice London: Kogan Page. Chambers, D, Davies, E. and Monti, G. (20110) European Union Law: Cases and Materials Cambridge University Press. Daniels, K. (2006) Employment Laws for Human Resources London: CIPD Publishing. Daniels, K and MacDonalds, L. A. (2009) Equality, Diversity and Discrimination: A Study Text London: CIPD Publishing. Davies, A. (2011) Workplace Law Handbook 2010: Employment Law and Human Resource Management London: Workplace Law Group. Hunter, C., Lam, L. and Lin, J. (2010) Employment Law in China Hong Kong: CCH Publishing. Income Data Services (2011) IDS Employment Law Handbook London: Sweet & Maxwell. Kelly, D. (1997) Business Law London: Routledge Korn, A. and Sethi, M. (2010) Employment Tribunals Remedies Oxford: Oxford University Press. Lockton, D. (2011) Employment Law 2011 – 2012 London: Taylor and Francis. Mansfield, G. (2012) Blackstone Employment Law Practice 2012 Oxford: Oxford University Press. Moffat, J. (2010) Employment Law Oxford: Oxford University Press. Morgan, L. and Carter, R. (2002) Roles and Perspectives in Law Melbourne: Victoria University Press. Moser, M. J. (2009) Managing Business Disputes in Today's China Amsterdam: Kluwer Law International Selwyn, N. (2006) Selwyn's Law of Employment Oxford: Oxford University Press. Streicher, S. (2011) Labour and Employment Laws Amsterdam: Kluwer International Cases BSM 1257 Ltd V Secretary of State for Social Services Carmichael V National Power PLC [1999] UKHL 47 Chandler, Masters and Scholars of the University of Oxford V Humphries & The Associated Examining Board [1999] CMLR 647 Coleman V Attridge [2007] IRLR 88 Courtaulds Northern Textiles Ltd V Andrews [1979] IRLR 84 Global Plant Ltd V Secretary of State for Health And Social Security James V Eatleigh Borough Council [1990] 2 AC 751 Malik V BCCI [1997] CR 606 Market Investigations Ltd V Minister for Social Security [1969] Polkey V. A. E. Dayton Services Limited [1987] IRLC 503 Ready Mixed Concrete V Minister of Persions and National Insurance [1968] 2 QB 497 Showboat Entertainment Centre Ltd V Owens [1984] St. Neots Ltd V Gardiner & Tavena [1984] IRLR 240 CA W Weddel & Co Ltd v Tepper [1980] ICR 286 WHPT Housing Association Ltd V Secretary of State for Social Services Statute Chinese Law on Employment Contract, 2007 Employment Relations Act 1996 Equal Treatment Directives (76/207/EEC) Equality Act 2010 Sex Discrimination Act 1975 Race Relations Act 1976 Read More