Unfair Dismissal And The Equality Act - Essay Example

Unfair Dismissal And The Equality Act Dismissal is the termination of a contract of an employee by an employer. Unfair dismissal arises whereby the reasons for dismissal or the procedure employed for dismissal is unfair or unlawful. When does unfair dismissal arise? The employment act introduces the ACAS code of practise. An employment tribunal has to consider these codes of practise before it makes or uplifts an award. The claim must be brought within three months. When it comes to discrimination cases the tribunal orders for reinstatement or re-engagement orders as seen in the case of Australia Meat Holdings Pty Ltd v McLaughlan whereby a Full Bench of the Commission stated that, “The question of whether reinstatement is ‘appropriate’ in a particular case will be a matter for the judgment of the Commission member at first instance based on the evidence and material before the Commission.” In the case scenario given, Sarah woods did bring the claim immediately and thus she was within the limits of the law. The first thing that a tribunal has to look at before it makes an award for a claim brought under unfair dismissal is to first look at the substantial merits of the case as was shown in the case of Iceland Frozen foods limited .vs. Jones the tribunal held that, as to the substantive merits of the case they did not regard Mr. Jones failure to be serious and did not regard it reasonable to dismiss him on those grounds. Does Sarah woods case have substantial merit to constitute a claim? In the case of Sarah Wood, her employer discriminated against her on the basis that she could not speak Spanish and that she was not a catholic. This also led to harassment from his employer and eventually her dismissal. The Employment act provides for two tests when looking at a claim for unfair dismissal. It will first look to see if the employer acted reasonably in dismissing the claimant and further if the employer had fair reasons to dismiss the claimant. In the case of Sarah Woods, her employer did not have fair reasons to dismiss her and he did not act reasonably in doing so. There are dismissals that the employment tribunal regards to be automatically unfair even if the process of the dismissal was appropriate. These dismissals are those that fall under discrimination and especially based on race and religion. Race and religion fall under protected characteristics. There are several protected characteristics (S.4 of the Equality Act 2010) laid down in the Equality act. These characteristics are aimed to be protected from discrimination (Deringer, 2010, p.1). Mr. Rodriguez disregarded the fact that Sarah woods had protected characteristic and contravened the equality act. This led to discrimination of his employee. Which form of discrimination then did Mr. Rodriguez portray? The Equality Act introduces two forms of discrimination which include direct and combined discrimination (S.13-14 of the Equality Act 2010).Direct discrimination is a case whereby a person discriminates against another because of a protected characteristic and he therefore treats the other person less favourably than the way he would treat others. Combined discrimination on the other hand is a circumstance whereby a person discriminates another because of the combination of two protected characteristics. In the case of Bahl .vs. Law Society, the issue was whether the law society and some of its officials were guilty of racial and sexual discrimination in relation to the appellant who was a black Asian woman of British nationality. It was held that the tribunal erred by not looking at sex and racial discrimination separately when the two were independent ground which had to be satisfied. In the case of Mr. Rodriguez he directly, indirectly discriminated against Sarah Woods. There were also elements of dual discrimination as he discriminated against her based on two protected characteristics. How is the employment tribunal likely to act in such a matter? Sarah woods by lodging a claim under the Employment tribunal was acting within the law and her claim falls within the jurisdiction of the employment tribunal. The tribunal also has jurisdiction to determine such a claim. Sarah woods case is within the time limit of lodging such a claim as she brought it up immediately before the tribunal (S.123 of the Equality Act of 2010). It can therefore be assumed that once an act of discrimination is alleged and found to be within the scope of the act, such a claim can then be lodged (Sandra Beale, 2010). Her claim is likely to be accepted by the tribunal as it has substantial merits. The tribunal has several remedies that it could apply in this case which include invoking its powers to declare an award under the ACAS code of conduct. It first has to see whether the claim is within the code of conduct and whether the code applies to the effect that it becomes just and equitable for the tribunal to adjust an award (schedule 2 of the Employment Tribunal Act). Sarah can bring a claim under the act, as she was harassed. This can also bring rise to a claim for constructive dismissal as the contract was violated. In case a tribunal finds that, there has been a contravention it will have powers under the equality act to (S.124 of the Equality Act 2010) a) Make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate b) Order the respondent to pay compensation to the complainant c) Make an appropriate recommendation. If the respondent fails to comply with the orders made by the tribunal the tribunal it may order the respondent to increase the amount of compensation paid or in cases where there were no orders as to compensation, it makes one. The tribunal also has the power to make recommendations that will not only suit the complainant as against the respondent but such recommendations are also meant for the wider work force. The tribunal has to give recommendations that are within its power as shown in the case of British Gas PLC v Sharma where it was held that recommending promotion was not a recommendation that was within the power of the tribunal since it was an act of positive discrimination, not allowed by the provision. What options does Mr. Rodriguez have in such a case? Mr. Rodriguez can claim that there was a band of reasonable responses. This is whereby one employer may reasonably take one view and another employer to take a different view. The function of the industrial tribunal will be to see whether in a particular case the decision of the employer to dismiss the employee fell within the band of reasonable responses which the employer may have adopted(S.57(3) of the Employment Relations Act). Mr Rodriguez conduct does not fall within the band of reasonable responses. The employer’s actions were out of discrimination of his Employee and in such a case the band of reasonable responses does not apply. The employment act provides for mediation and conciliation which the employer could explore in such a case to receive a favourable outcome .The act provides for mediation and conciliation under the Advisory, Conciliation and Arbitration services, Government Equality Office, (2010, p.2). The tribunal also has to make a decision and in coming up with such decisions it has to act within it scope and mandate it is not required to exceed its powers. It should act as require within its framework. In this case, uncertainty will be dismissed as a test to be used to decide whether a dismissal was unreasonable or not, this was decided in the case of Post office .vs. Foley. The court warned tribunals against substituting themselves with employers in a dismissal case. Conclusions In the case of Sarah woods there was the presence of direct, indirect and dual discrimination. Mr. Rodriguez directly discriminated against Sarah woods by speaking to her in Spanish when he could speak fluent English. He also discriminated against Sarah woods on the basis that she was a pagan and they were Catholics Sarah Woods’s case was one that distinctively portrays unfair dismissal. Her rights were discriminated against when the rights of people should not be discriminated against especially in cases of employment (Waltman, 2010 p.17). The alleged act of discrimination brought by Sarah Woods are thus within the act for there is no reference made as to where the employee and the employer need to be based for an act of discrimination to be valid, (Equality Act abroad, 2011.p.1). As it is known racial and religious discrimination is also prohibited under the European convention of human rights. Recommendations The act provides for mediation and conciliation under the Advisory, Conciliation and Arbitration services, Government Equality Office, (2010, p.2) whereby parties can go into mediations and conciliations, this would be applicable in this case as the outcome is favorable to both parties and if one is aggrieved he could bring up the case to the tribunal. The employer will have to consider re-engagement or reinstatement of his employee since his actions were discriminatory and led to unfair dismissal and contravention of the law. List of References Australia Meat Holdings Pty Ltd v McLaughlan (1998) 84 IR 1, 19. Bahl .vs. Law Society [2004] EWCA Civ 1070 (Court of Appeal); [2003] IRLR 640 (EAT) British Gas PLC v Sharma, 1991 IRLR 101 (Court of Appeal) Capeling v Devonport Royal Dockyards Ltd (3 Dec 2008; Employment Tribunal) Employment Tribunal Act Employment Relations Act Equality and Diversity Forum, Evaluation of the Equality Act 2010 Evidence Dossier (2011, p.33) retrieved 10 November 2011 from Freshfields Bruckhaus Denning, The Equality Act 2010: an introduction (2010, p.1) retrieved on 10 November 2011 from Jerold Waltman, Religious liberty and the employment sections of the Equality Act 2010, (2011, p.17) retrieved on 10 November 2011 from “The Equality act 2010 impact on Employees-HR factsheet” HR factsheet (n.d. 2010) Equality Challenge Unit, the Equality Act abroad: implications for higher education institutions, (2011, p.1-6) Retrieved on 10 November 2011 from Iceland Frozen foods limited .vs. Jones[1983] ICR 17 Post office .vs. John Foley: HSBC Bank PLC(Formerly Midland Bank)PLC .vs. John Madden(2001 1 ALLER 550;2000 ICR1283) The Equality Act 2010 The European Convention of Human Rights Article 9 “Equality Act 2010: The Equality Act practice notes” The Law Society (n.d.) Post office .vs. John Foley: HSBC Bank PLC(Formerly Midland Bank)PLC .vs. John Madden(2001 1 ALLER 550;2000 ICR1283) Read More