Rights under the Employment Law - Case Study Example

Running head: RIGHTS UNDER THE EMPLOYMENT LAW Rights Under the Employment Law: Issues and Advice (School) Rights Under the Employment Law Issues and Advice In the workplace, employees have certain rights when they accept an employment offer. They also have an understanding of what will be expected of them in their position. When there are drastic changes, employees need to know what steps to take to determine their rights in such a situation. Below is a hypothetical conflict faced by an employee in a national company: Issue: Changes in Duties and Responsibilities Andy's company called Secure It is changing to a web-based order system, using e-mail and also limiting visitations to cases where customers respond to post or e-mail promotion for a security check. In addition to a decrease in sales work on the road, Andy was told he must take a course in electronics in order to make after-sales repairs. His hours were increased: he would no longer have a half day on Fridays and would be on call one weekend in six. Andy wants to know if he must agree to the changes made by his employer. He has been with the company for two and a half years. Advice Several issues have been presented here, but it would be necessary to know what Andy's terms of employment were when he took this job. Because of the length of his employment, he does have specific options. Will these changes affect his salary Is he on commission only What financial losses will he incur with these changes Will the company pay for his electronics course Is he willing to increase his knowledge in the area of electronics The answers to these questions will begin to determine whether the changes would be mandatory or might be adjusted in Andy's favor. As soon as an employee accepts a job offer, he is considered under contract, even if he has no written contract (Advice Leaflet 2005; "Contracts of employment," DTI, 2005). Terms of employment, however, can be changed by mutual agreement. The terms under a contract of employment that might be affected by changes in Andy's case are pay, hours of work, fringe benefits, and job duties and responsibilities ("Changes to employment contracts," 2004). Andy and his employer might be able to agree on a compromise. If there is a written statement in the form of an employee handbook that describes his duties and responsibilities as they existed when he was hired, it might help Andy's case (Rights at work, 2005). When an employer makes any changes to Andy's duties and responsibilities, the employer must give him a written statement, not just verbal, within a month, stating planned changes to his original duties (Advice Leaflet 2004). In the case where Secure It gives Andy no option but to accept the changes, he can object and end his employment which is called "constructive dismissal". He would then have the right to make an employment tribunal complaint which would give him the same rights as if his employer had dismissed him (Contracts of Employment 2005, DTI, sec. 8). This would not have to be done if Andy was willing to accept some changes and make an effort to reach a compromise with his employer. Breach of Contract Since Andy does not expect any compromise from his employer, he would like to know what his next step should be. He says he thinks his employer wants him to leave the firm. Andy said he was told by his employer that he had better be good at electronics because his sales figures showed what a rubbish salesman he was. Andy would prefer to leave the company and wants to set up a rival security firm with his friend Lou. He wants to know if he can do that since there is no actual written contract. Advice Andy should understand that he can start planning a rival company, but until his issues with the company are resolved, he cannot do anything about it. As noted before, he is under contract even if it is not in writing. The question here would be does he want to leave, or would it be possible for him to accept changes through mutual agreement with his employer and stay with Secure It He should keep in mind that if he decides to set up his own security firm in competition with his present company, he would have to be proficient in electronics. He might want to look into the new legislation for resolving disputes (Advice Leaflet 2005). He will have to follow the new laws in effect to initiate his grievance. If Andy chooses to go into arbitration with his company, he cannot follow through on any plans for a new company until his complaint has been resolved. He must also understand that his employer has the right to file a counter claim. Even without a written contract, the contract exists and includes both Andy's rights and the rights of Secure It. Formal Complaint Andy is showing no inclination to come to an agreement with his employer and, in fact, wants to know how he should go about filing a formal complaint. Advice Andy needs to understand what he can expect if he files a formal complaint. He will be entering into a dispute that will take time to complete. The first thing he must realize is that he cannot be compensated for stress or hurt feelings, only for financial damages. He should find out if his company has a standard grievance procedure in writing. This should have been included in an employee handbook. Once he makes the commitment to file a complaint, he should contract a mediator such as the Advisory, Conciliation and Arbitration Service (ACAS history 2005). The new legislation for dealing with a grievance was activated on October 1, 2004, with a three-step process as listed below, intended to discuss problems before resorting to a tribunal. Standard grievance procedure (the 3-step process) Put it in writing The employee must send a written explanation of their grievance to [employer] stating the basis for the complaint Meet and discuss You [employer] should invite the employee to a meeting to discuss the issue (both you and the employee should take all reasonable steps to attend) After the meeting, inform the employee of your decision and offer them the right to appeal Appeal If the employee wishes to appeal against your decision or failure to make a decision, they must inform you Invite the employee to a second meeting to discuss the appeal Give the employee your final decision after the meeting. New laws for resolving disputes, DTI, p. 7 Claims for Constructive Dismissal Andy is convinced his employer has fundamentally altered the terms of his job. He wants to know if he can make any claims for dismissal and what he can expect to recover. Advice It would appear from the information Andy has presented that he might have grounds for constructive dismissal, although constructive dismissal is difficult to prove in the employment tribunals. There must be a clear breach of contract by his employer, and he needs specialist advice to determine this (Canter, 2006). With constructive dismissal he would be entitled to make an unfair dismissal complaint to an employment tribunal in the same way as if the employer dismissed him for objecting to variation of contract. He should be aware, however, that if there are provisions in his job description allowing his employer to make changes such as undertaking a different type of work, then the change is lawful (Constructive Dismissal, DTI 2005). Although Andy is considered to be under contract even without a written document, he will find it difficult to make specific allegations without written proof of his employer's digressions. On the other hand, it would appear his employer might not have written proof either. Andy mentioned the fact that his employer made a humiliating statement to him regarding his job capabilities. According to a recent online Compact Law article, this is unacceptable in the work place. "The employee and the employer owe each other a duty of 'mutual trust and confidence;' they must show respect for each other" (What Obligations, employer, par. 7). Under Monster's Employment Factsheet, when an employee resigns because of his employer's behavior, it can be considered a fundamental breach of contract. Two possible reasons for this in Andy's case are as follows: his employer can be accused of "harassing or humiliating staff, especially in front of other less senior staff" and "changing an employee's job content or terms without consultation" (Constructive Dismissal, Monster, 2006, pars. 2, 4). Although Andy said his boss told him about the changes, he made no mention whether this was done in consultation or whether Andy was simply told these changes would be made. Also, if an employee is paid by commission and the employer limits the employee's opportunities to make a commission, this could be grounds for constructive dismissal. In constructive dismissal, however, the employee must prove the dismissal was unfair, and employment tribunals do not like to interfere with business management (Canter, 2006). In Andy's case, his lack of concrete proof of his allegations could work against him. If his employer can show written proof of a variation or flexibility clause, Andy might have to accept the changes (Changes to Employment Contracts, 2004). As far as recovery is concerned, he is entitled to statutory rights, although qualifying conditions must exist before a right may be claimed. It must be determined what terms and conditions of employment have been breached. He cannot file with an employment tribunal until his job ends, and he has a three-month limit to file. There is a cap of 25,000. In addition, his employer can counter claim (Advice Leaflet, 2004). Showing Need for Adaptation Andy wants to know if he still has grounds for a claim if his employer can show that the company must adapt to new procedures in order to stay in business. Advice Even if this happens, Andy might still have a grievance. His employer was obligated to give him a written statement of main particulars of employment within two months of the beginning of his employment that included details of pay, hours, holidays, notice period, and an additional note on disciplinary and grievance procedures. If Andy received this statement, it will determine his next step. He might be able to make a claim since a court or tribunal would have to find the changes reasonable and that the employer was not acting in breach of contract by making changes without Andy's approval (Canter, 2006). Grounds for Dismissal Andy's friend Lou was sacked without notice and was not given a reference when his employer told him a customer had complained about him. Andy wants to know how the employer should have handled this situation. Advice Without knowing anything about Lou's past history with the company, it is difficult to know if his employer acted appropriately. How long has Lou been with the company After one month, he is entitled to one week's notice of termination, and after two years one week's notice per year of service to a maximum of 12 weeks. However, the employer has the option to pay Lou in lieu of giving him notice (Rights to Notice, 2006; Canter, 2006). If it is determined that Lou's behavior justifies his dismissal, no notice is required. Also, his employer is not obligated to provide references unless required by Financial Service Authority (What Obligations, employer, 2006). An unfair dismissal test would indicate Lou's rights in this matter. It would appear that he was sacked on the basis of a customer's complaint. This would fall under "conduct" in the test (Unfair Dismissal Test, 2006). If it is listed under "conduct," Lou's dismissal would be considered fair. In other words, Lou has the right to know what the complaint was and his employer should have told him. Conclusion The overall conclusion reached based on information given is that Andy would probably benefit more from accepting his employer's changes because there seems to be no concrete evidence for unfair dismissal, even with his employer's derogatory attitude. In Lou's case, more information is necessary to determine employer's obligations. References ACAS history (2005). ACAS, last web update October 2004. Retrieved March 13, 2006, from http://www.acas.org.uk/index.aspxarticleid=413 Advice Leaflet: Varying a contract of employment, (2005). ACAS, last web update October 2004. Retrieved March 13, 2006, from http://www.acas.org.uk/index.aspxarticleid=816. Canter, Levin & Berg, Solicitors, (2006). Unfair dismissal check, updated Feb. 8, 2006. Retrieved March 13, 2006, from http://www.canter-law.co.uk/employment/unfair8.html Changes to Employment Contracts: Adviceguide (2004). Citizens advice bureau, retrieved March 14, 2006, from http://www.adviceguide.org.uk/e_changes_to_employment_contracts.pdf Constructive Dismissal (2005). Department of Trade & Industry, updated December 19, 2005, retrieved March 15, 2005, from http://www.dti.gov.uk/er/individual/unfair-pl712a.htm#constructive Constructive Dismissal (2006). Monster Employment Law, retrieved March 14, 2006, from http://www.compactlaw.co.uk/monster/empq7.html Contracts of Employment (2005). Department of Trade & Industry, retrieved March 14, 2006, from http://www.dti.gov.uk/er/pay/contracts-pl810.htm Dispute Resolution (2004). Employers Organisation for local governments, retrieved March 14, 2006, from http://www.lg-employers.gov.uk/relations/law/dismissal/index.html Employment Rights UK Trade & Investment. Retrieved March 14, 2006, from http://www.uktradeinvestusa.com/DBUK/invest/other_show.aspSarticleType=7&Other_ID=139 New laws for resolving disputes (2005). Department of Trade & Industry, retrieved March 13, 2006, from http://www.dti.gov.uk/er/new_resolving_disputes_laws.pdf Rights at work (2006). ACAS, retrieved March 14, 2006, from http://www.acas.org.uk/index.aspxarticleid=341 Rights to notice and reasons for dismissal (2005). DTI Employee Relations, retrieved March 14, 2006, from http://www.dti.gov.uk/er/individual/reasons-pl707a.htm Unfair dismissal test. iVillage.co.uk, Compact Law. Retrieved March 15, 2006, from http://www.compactlaw.co.uk/ivillage/employment/empf9.html What obligations/duties does the employee owe to their employer iVillage.co.uk, CompactLaw. Retrieved March 14, 2006, from http://www.compactlaw.co.uk/ivillage/employment/empq7.html What obligations/duties does the employer owe to their employee iVillage.co.uk, CompactLaw. Retrieved March 14, 2006, from http://www.compactlaw.co.uk/ivillage/employment/empq8.html Read More