Safe Work Environment - Essay Example

?Email One: If it is found that the employer breached a duty of care to provide a healthy and safe work environment which ultimately led to Juliana’sinjury, terminating James’ employment would constitute unfair dismissal. Employers owe a non-delegable duty of care both under statute and at common law to ensure that employees are provided with a healthy and safe place of work. The statutory duty is contained in Section 2 of the Health and Safety at Work Act 1974. Pursuant to Section 2 of the 1974 Act the employer’s duty is provide a safe place of work where it is reasonably practical to do so. This includes a duty to provide a safe system of work, competent employees, proper supervision and to safeguard against “risks to health in connection with the use, handling, storage and transport of articles and substances” (Health and Safety at Work Act, 1974, Section 2(2) (b)). The main question is whether or not the untidy state of the office in connection with the moving of desks and filing cabinets was such that it was a breach of the employer’s statutory duty to provide a safe and healthy workplace. Assuming therefore that a work system was devised in which employees were supervised and competent regarding working around the boxes, and there was a reasonable explanation for the untidy state of the office, the employer is not in breach of the statutory and common law duty to provide a safe and healthy workplace. The main question is whether or not it was reasonably practical to move the boxes from the work area and whether or not it was reasonable to expect for workers to assume some responsibility for their own safety given the state of the office at the time (Smith v Scott Bowyers 1986). The employer can also expect employees to exercise some degree of common sense in situations where an obvious danger exists (O’Reilly v National Rail 1966). On the facts of the case presented, it does not appear that the boxes of files alone pose a danger to employees and it is certainly not unreasonable to expect for employees to navigate around the boxes carefully. The harm caused to Juliana was certainly not foreseeable, particularly since it was a result of a practical joke. There is no evidence that the employer could have reasonably foreseen that James would play a practical joke on Juliana and it would appear that the injury suffered by Juliana was a result of the practical joke and not as a result of the untidy state of the office. It is not known whether or not James was predisposed to playing practical jokes on the job. For example it was held in Smith v Crossley Brothers (1951) that where employers were unaware of the fact that an employee was a practical joker they cannot be vicariously liable for the harm caused by a practical joker on the job. In such circumstances the practical joke cannot be predicted nor can it be prevented. Moreover, in such a case, the employee is said to be off on a frolic of his own and not acting in the course of his or her employment (Smith v Crossley Brothers, 1951). Had James played a practical joke in the course of performing a duty, the employer would be vicariously liable for James’ behaviour and the resulting injury to Juliana (Harrison v Michelin Tyre Co. 1985). If he is known to be a practical joker on the job and the employer did nothing to stop or prevent James playing practical jokes, they may be vicariously liable for the injuries to Juliana (Hudson v Ridge Manufacturing Co. Ltd. 1957). It was held in Hudson that when an employer is aware that an employee by his or her behaviour poses a source of danger to other employees, the common law duty of care to provide a healthy and safe workplace requires the employer to remove that source of danger (Hudson v Ridge Manufacturing Co. Ltd. 1957). It therefore follows that now that the employer is aware of James’ behaviour and there is a reasonable belief that James may repeat this behaviour, the employer may dismiss James (Albernethy v Mott, Hay and Anderson 1974). The onus is on the employer to prove that the dismissal was fair (Employment Rights Act 1996, Section 98). Given that James is unwilling to accept any responsibility for his part in Juliana’s injury, his conduct given the state of the office and the injuries sustained by Juliana, the dismissal is likely fair since the employer has a duty to remove a known source of danger. However, it is important to follow the ACAS Code of Practice: Discipline and Grievance Procedures 2003. In following the ACAS Code, dismissal should not be the first option. The Code recommends giving the employee at least one chance to correct the behaviour. In this regard, in compliance with the ACAS Code the employer should inform James of the misconduct in writing and schedule a meeting to discuss the problem and possible solutions for adjusting his bahviour. The employer should also give the employee an opportunity to defend the claim of misconduct before any kind of disciplinary action is taken (ACAS Code of Practice: Discipline and Grievance Procedures 2003). Therefore it is recommended that the employer does not dismiss James without first sending him notice in writing of the misconduct, arrange a meeting to discuss the matter and give James an opportunity to correct his behaviour. Should he act in an irresponsible manner again, he can be dismissed. Email Two: Whether or not there is a written or oral contract of employment between Maria and her employer there should be a written statement of the terms and conditions of her employment (Employment Rights Act 1996, Section 1). Such a statement and/or contract would expressly provide the work hours that Maria is required to work in order to live up to her end of the bargain under the employment contract. It is not known whether or not the working hours provided for in the statement of terms and conditions require Maria to work five days a week. However, the employer is at liberty to change the terms of the contract as provided for in the statement provided the employee is given one month’s notice of the changes (Employment Rights Act 1996, s. 4(3)). Therefore, if the statement of terms and conditions do not require Maria to work five days a week, the employer may change the terms to reflect a five day work week requirement but must first give Maria one month’s notice of the change. Moreover, the employer has a right to change the rules of work provided notice of the changed rule is given. This is typically provided for in an employment manual or handbook that is incorporated into the employment contract (Honeyball, 2012). When an employer makes a reasonable change to the work rules and an employee refuses to comply with those changes, the employee can be fairly dismissed (Ticehurst v British Telecommunications Plc., 1992). It was held in Dal v A.S. Orr 1980, that a term in the employee’s manual indicating that the employer reserved the right to make changes in office hours and shifts to accommodate the employer’s productivity was a binding term of the employment contract. Therefore, if the employee’s manual provides such a clause, Maria is bound by the handbook and as such is bound by the changes in the work hours. If the contract of employment is for a five day work week, Maria’s desire to work only three days a week represents a variation of the contract. Variations to an employment contract require both parties’ (employee and employer) consent (Adamas Ltd. V Cheung, 2011). Since the employer does not agree to the new terms suggested by Maria (assuming it is a new term), the contract of employment requiring Maria to work five days a week cannot be varied. Maria is therefore required to work the five day week. If Maria does remain at work and works only three days a week, this would amount to misconduct for failing to comply with a reasonably order and for failing to comply with the terms and conditions of the original contract of employment (Robinson v Tescom Corporation, 2008). Conversely, even if the original contract of employment is for fewer work day weeks and the employer wishes to have Maria work more days against her wishes, Maria will still be required to work five days unless she accepts the breach and resigns (Brudett-Coutts v Hertfordshire County Council, 1984). If, the contract of employment does not require Maria to work five days and she does not agree to the new requirement, and she decides to continue working under the new terms and has expressed disagreement to the varied terms, she may sue the employer for damages (Brudett-Coutts v Hertfordshire County Council, 1984). It is also the employer’s duty to ensure that Section 20 of the Equality Act 2010 does not apply. In this regard, the employer needs to make sure that Maria’s absence are not related to a disability within the meaning of Section 6(1) of the Equality Act 2010. According to Section 6(1) a person has a disability if he or she suffers from a “physical or mental impairment” with “long-term” effects. In such a case, the employer is required to make reasonable adjustments to accommodate the employee’s disability (Equality Act 2010, Section 20). It is therefore important that the employer ensure that Maria was originally required to work five days a week and is therefore bound by that requirement pursuant to the employment contract as evidenced in the statement of particulars. If there is no such requirement, the employer needs to ensure that the employee manual reserves unto the employer the right to make an alteration to the employee’s work schedule. Otherwise, the employer will need Maria’s consent to alter the terms of the contract or face a suit in damages. If the employer has a right to alter the terms of Maria’s work schedule or Maria is contractually bound to work five days a week and refused to do so, she may be fairly dismissed. In any event, the employer must discuss the matter with Maria and provide evidence in writing of the proposed variation encapsulating revision of the working hours whether it is Maria seeking the variation or the employer (Flexible Working (Procedural Requirements) Regulations 2002). If however, it is found that Maria suffers from a disability, it is recommended that reasonable adjustments be made to accommodate Maria’s disability and this might mean cutting back on her work days. It is recommended that the employer determine if it is at all possible to have Maria carry out some of her duties at home to make up for the shortened workweek. Email Three: The employer considering subcontracting security services that will impact the jobs of its current security officers needs to take into account the relevant provisions of the Transfer of Undertakings (Protection of Employment) Regulations 2006. This is important because if the 2006 Regulations apply to the current plan to subcontract security services is found to be a transfer of undertakings, the employees impacted will be protected under specific circumstances (Bannon v Employment Appeals Tribunal and Drogheda Town Centre Ltd. 1992). The protection in question guarantees employees a continuation of their employment notwithstanding the transfer of undertakings (Transfer of Undertakings (Protection of Employment) Regulations 2006, Section 4). In this regard, if it is determined that the subcontracting out of security services is found to be a transfer of undertaking the security officers currently carrying out the security work cannot be termination. For the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006, a transfer of undertakings can occur where only a part of the business is transferred out (Section 3(1)(b)(i)). This particular issue was determined in Schmidt v Spar und Leihkassder Fruheren Amter Bordesholm 1994 which was decided under the EU Directive adopted by the Transfer of Undertakings (Protection of Employment) Regulations 2006. In Schmidt, the plaintiff was employed to provide cleaning services by a bank. The bank made the decision that it would rather subcontract the cleaning services out to a cleaning company (Schmidt v Spar und Leihkassder Fruheren Amter Bordesholm 1994). The question for consideration was whether or not the cleaning services was a part of the bank’s undertaking. The bank argued that it was not as it was merely an incidental service and was not a part of its main services. As such, the cleaning services was not an undertaking. The court ruled however, that in determining whether or not a transfer was a transfer of undertakings, it was necessary to determine whether or not the “business retains its identity” (Schmidt v Spar und Leihkassder Fruheren Amter Bordesholm 1994, 636). Since the job performed by the new employee or subcontractor was exactly the same as the job performed by the previous employee was an indication that the business retained its identity. Moreover, even if the activity at issue was performed by only one employee, this would not prevent a finding that there was a transfer of undertaking (Schmidt v Spar und Leihkassder Fruheren Amter Bordesholm 1994). Similarly, in Rask and Christensen v ISS Kantineservice A/S 1993 business entity decided that it wanted to contract out its canteen services provided for its employees. The business had previously employed a number of workers to operate the canteen. Two employees working in the canteen were effected as they worked under the new contract with the sub-contractors and did not agree to the new terms of their contract. As a result, refused to work under the new contract terms and conditions. The employees were therefore dismissed and sued for compensatory damages. It was held that the employees were entitled to damages because although the transfer related to an incidental service, it was a transfer of undertakings nonetheless (Rask and Christensen v ISS Kantineservice A/S 1993). Thus it can be concluded that the subcontracting of the security services is a transfer of undertakings. Therefore, the employer needs to be aware that whether or not the security guards are permitted to continue working with the security department they will be entitled to damages. If the terms of the transfer adversely impacts the security officers’ jobs, they are entitled to damages for breach of contract. If the security officers are terminated, they will also be entitled to compensatory damages. It is therefore recommended that the employees affected be given reasonably notice of termination. Email Four: Changes in work schedules and working hours are permitted provided the employer has a right under the terms and conditions of the employment contract to do so (Dal v AS Orr, 1980). Therefore, when the employer has the contractual right to change the work schedule, shift and hours of work, such changes will not amount to a breach of the employment contract (Dal v AS Orr, 1980). However, if the employer does not have the right to change the work schedule, any change in the work schedule and working hours amounts to a change or variation of the original contract terms. As such, changing the schedule without first negotiating with the employee is a unilateral variation of the contract and the employee is at liberty to reject the new terms and may file suit against the employer for damages for breach of the contract of employment (Dal v AS Orr, 1980). Assuming therefore that the employer has the contractual right to alter the working hours, the effect of the new schedule must comply with the Working Time Regulations 1998. It needs to be determined how the new schedule effects the working time of the workers and whether or not the worker’s health is such that he or she can change night work. To begin with, it is important that all workers who are night workers are not required to work more than 8 hours of night duty within a 24 hour work period (Working Time Regulations 1998, Regulation 6). In this regard, a night worker is a worker who works at night for at least 3 hours (Working Time Regulations 1998, Regulation 2). Moreover, any night worker assigned to night hours is entitled to a free health evaluation (Working Time Regulations 1998, Regulation 6(7)). The night worker is also entitled to follow-up health evaluation (Working Time Regulations 1998, Regulation 7). In the event a doctor recommends that the night worker be removed from night work, the worker must be transferred to normal working hours (Working Time Regulations 1998, Regulation 7(6)). Workers must also be permitted to have 11 hours out of each 24 hour period free or away from work and at least 24 hours free within a 7 day work period (Working Time Regulations 1998, Regulations 7(6) and 11(1)). Although the new schedule complies with this requirement, the employer must bear this in mind in the event an employee is required to work overtime or to work more than one shift at a time. It is also important to be aware of the fact that all workers are entitled to a rest period of at least 20 minutes when working for a period of six hours or more (Working Time Regulations 1998, Regulation 12(1)-(3)). The new schedule requires employees to work on Saturdays from 8 a.m. to 2 p.m. with no lunch break. Whether or not this means that the workers will have a rest period is not known. It is therefore suggested that the workers be permitted to at least have a 20 minute rest since they are working for more than 6 hours. It has been stipulated that the allotted lunch breaks of 30 minutes are without pay. Since the Regulations fail to state whether or not lunch breaks are paid, it is assumed that lunch breaks can be allotted without pay. In any event it was held in Gallagher v Alpha Catering Services Ltd. 2004 that rest periods must be slated for a specific time and must therefore at the very least have a commencement time. This requirement was met. However, rest time must be scheduled for the Saturday workers and the time for which this rest period is to start should likewise be scheduled and published. In all cases where an employee is required to work through his or her rest period, he or she is entitled to a rest period calculated to make up for the missed rest period (Working Time Regulations 1998, Regulation 24). It is therefore recommended that before the work schedule is published, the employer ascertain whether or not the employer reserved the right to alter the work schedule and as such the right to unilaterally vary the terms and condition of employment. If no such right exist, then it is recommended that each of the employees to which the new work schedule applies be given an opportunity to agree to the new schedule. If the employees do not agree, it is recommended that alternative arrangements be made to accommodate the schedule. This might include having employees change shifts and if necessary dismissing employees who are not amenable to changes if the schedule is absolutely necessary for the conduct of the business. The employer needs to show that the changes are necessary and reasonable for the conduct of the business (Honeyball, 2012). It is also recommended that any changes made comply with the Working Time Regulations 1998 in that the employees are not required to work without appropriate rest breaks and do not work night shifts that exceed the maximum limit. Email Five: Redundancy is a fair ground for dismissal (Employment Rights Act 1996, Section 170(2)). Redundancy is an economic decision that an employer is entitled to make and will not be applied to a claim for unfair dismissal, provided redundancy is the main reason for the dismissal (Midland Foot Comfort Centre Ltd. v Richmond 1977). This is obviously an economic decision since the employees will be declared redundant on the grounds that the employer is suffering from a downturn in sales and thus all of the sales team are no longer required. Even so, the employees to which redundancy is properly applied will be entitled to statutory redundancy payments (Fox Bros (Clothes) Ltd. v Bryant 1979). Although an employee may claim both redundancy and unfair dismissal, the employee will not be entitled to damages for both as double compensation is not permitted (Employment Rights Act 1996, Section 122(4)). A redundancy dismissal can be challenged on the grounds that it is not fair nor reasonable (Employment Rights Act 1996, Section 98(4)). For example by virtue of Section 153 of the Trade Union and Labour Relations (Consolidation) Act 1992 and Section 105 of the Employment Rights Act 1996, a redundancy is unfair or unreasonable if it can be demonstrated to the satisfaction of the court that the redundancy applied to other employees whose services were not terminated and that the employees who were declared redundant as a result of their membership with a union or that the redundancy was on grounds vastly similar to the grounds for a finding of unfair dismissal (Smith and Thomas, 2008). As Phillips J noted in Trust House Forte Leisure Ltd. v Aquilar 1976 when an employer: …is confronted with a decision to dismiss an employee in particular circumstance there may well be cases where reasonable managements might take either of two decisions: to dismiss or not to dismiss. It does not necessarily mean if they decide to dismiss that they have acted unfairly because there are plenty of situations in which more than one view is possible (p. 254). Therefore it all depends on whether or not the employer is of the opinion that the redundancy which results in the employee’s dismissal is the most reasonable response to particular situations and circumstances. Lord Denning explained further that the test for fairness is determined by reference to what a reasonable employer would have done in the same situation. However, it was also important to note that there are a range of possibilities in that one employer might reasonably conclude that dismissal was not the appropriate response while another reasonable employer might think otherwise: It must be remembered that in all these cases there is a brand of reasonableness, within which one employer might reasonably take one view; another quite reasonably take a different view…it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him (British Leyland (UK) Ltd. v Swift 1981). Therefore the redundancy dismissals will be deemed a reasonable response given the current financial situation experienced by the employer. In other words, a downturn in the business indicates clearly that there is a diminished need for a large sales team. The procedure elected for determining which employees should be the subject of redundancy declarations also appears to be fair. The first criteria is length of service indicating a first in, last out selection process. This is thought to be a relatively fair method choosing appropriate redundancy employees (Smith & Thomas, 2008). This is an important decision since the employee is at liberty to claim that the redundancy was unfair in general (Employment Rights Act 1996, Section 98). The employer has chosen what can be described as a fair and reasonable selection process. The employees are selected on the basis of their length of employment, performance, attendance and willingness to work on weekends. This suggest that the more dedicated and loyal employees will be kept as far as it is possible to do so. This appears to be an equitable selection process and would substantially defeat an argument that the redundancy selection process was inequitable and lacking in merit (Bessenden Properties Ltd. v Corness 1977). In order to avoid a claim of unfair redundancy, it is recommended that the employer is careful to ensure a balance in terms of gender, race and ethnicity. If the number of females and males or blacks and whites are too imbalanced it might have the appearance of discrimination. Although this might not line up with years of service and/or attendance, all attempts should be made to ensure that the criteria is met as far as it is possible to do so without having the appearance of discriminatory selection. It is also recommended that the employer follow the ACAS Code of Practice: Discipline and Grievance Procedures 2003 which is recommended by ACAS Advisor Booklet – Redundancy Handling. In this regard, employees who are subject to redundancy should be told the reasons for the redundancy and given an opportunity to challenge and appeal the redundancy decision (ACAS Advisory Booklet – Redundancy Handling). Bibliography Statutes ACAS Code of Practice: Discipline and Grievance Procedures 2003. Employment Rights Act 1996. Equality Act 2010. Flexible Working (Procedural Requirements) Regulations 2002. Health and Safety at Work Act 1974. Trade Union and Labour Relations (Consolidation) Act 1992. Transfer of Undertakings (Protection of Employment) Regulations 2006. Working Time Regulations 1998. Cases Adamas Ltd. v Cheung [2011] IRLR 1014. Albernethy v Mott, Hay and Anderson [1974] IRLR 213. Bannon v Employment Appeals Tribunal and Drogheda Town Centre Ltd. [1992] ELR 203. Bessenden Properties Ltd. v Corness [1977] ICR 831. British Leyland (UK) Ltd. v Swift [1981] IRLR 91. Brudett-Coutts v Hertfordshire County Council [1894] IRLR 91. Dal v AS Orr [1980] IRLR 413. Fox Bros (Clothes) Ltd. v Bryant [1979] ICR 64. Gallagher v Alpha Catering Services Ltd. [2004] IRLR 102. Harrison v Michelin Tyre Co. [1985] 1 All ER 919. Hudson v Ridge Manufacturing Co. Ltd. [1957] 2 All ER 229. Midland Foot Comfort Centre Ltd. v Richmond [1977] ICR 117. O’Reilly v National Rail and Tramway Appliances Ltd. [1966] 1 All ER 499. Rask and Christensen v ISS Kantineservice A/S [1993] IRLR 133. Robinson v Tescom Corporation [2008] IRLR 408. Schmidt v Spar und Leihkassder Fruheren Amter Bordesholm [1994] IRLR 302. Smith v Crossley Bros Ltd. [1951] 95 SJ 655. Smith v Scott Bowyers Ltd. [1986] IRLR 315. Ticehurst & Thompson v British Telecommunications [1992] IRLR 219. Trust House Forte Leisure Ltd. v Aquilar [1976] IRLR 251. Textbooks Honeyball, S. (2012). Honeyball and Bowers’ Textbook on Employment Law. Oxford, UK: Oxford University Press. Smith, I. and Thomas, G. (2008). Smith & Thomas’ Employment Law. 9th Ed. Oxford, UK: Oxford University Press. Internet Sources ACAS Advisory Booklet – Redundancy Handling (n.d.). http://www.acas.org.uk/media/pdf/a/3/B08_1.pdf (Retrieved 13 June 2013). Read More