Employment Law and Employment Status - Case Study Example

Employment Law What is the employment status of Parveen and Joshua Parveen Sharif as a contractual employee of Biosynth is still an employee ofBiosynth as long as she wishes to, and her contract indicates, unless proven by her employer otherwise even if she was proven to have failed to follow correct safety procedures. Likewise, Joshua, Parveen's friend who may have also been a contractual employee remains as an employee of Biosynth until he wishes so and his contract may indicate unless proven otherwise by his employer. Since there has not been a proper procedure undertaken by Biosynth to establish whether Parveen and Joshua's behaviour or actions were minor acts of misconduct or grave acts of misconduct, the two employees remain as such until a proper termination and dismissal occurs. Each act of misconduct as provided for by the Employment Act 2002 follows a certain procedure: 1. Oral Warning 2. First Written Warning 3. Final Written Warning and 4. Dismissal (Employment Law Solicitors, 2006.) In fact, gross misconduct which may merit instant dismissal requires acts such as failure to comply with reasonable and lawful instructions, theft, sale or consumption of alcohol, physical assault, breach of duty of confidentiality, sexual or racial harassment, fighting, willful damage to an employers property, or attending work under the influence of prohibited drugs. The mentioned acts may not be exclusive but it has always been lawful that a proper investigation must be conducted of which the employees may also appeal. Solicitor Royden (2006) listed below acts that may merit immediate dismissal as: "the employee is unable or unqualified to do the job in hand (e.g. long term sickness absence) the employee's conduct is unsatisfactory (e.g. poor attendance) the employee is legally prevented from continuing to carry out their job (e.g. a van driver who loses their licence) redundancy (e.g. due to closure of premises) some other substantial reason (e.g. a refusal to agree to a necessary and reasonable change in terms and conditions of employment) (Royden, 2006), Parveen and Joshua may take into consideration previous similar instances when an accident occurred due to failure of employees to follow procedure as that of another employee Jake in November 2003 where Jakes failure caused explosion and injury of other employees. Jake was warned twice prior to dismissal. Other cases were also noted by Praveen, and she may state these in her appeal. 2. What claims may Parveen and Joshua bring following their dismissal As provided for by the United Kingdom Employment Act of 2002, a worker is dismissed or had an employment end with or without notice. This may be applicable when a fixed-term contract was not renewed or when an employer forced the worker to retire. In the case of Parveen and Joshua, appears to have been victims of unfair dismissal as both employees still want to return to their jobs and that dismissal was not due to expiration or non-renewal of their contract. Parveen and Joshua may both push for unfair dismissal due to the consequences brought forth by the accident of which they were involved. In this matter, the employer has to prove that due process has been undertaken prior to dismissal of both employees. There are two ways to show that a dismissal was not unfair, of which the employer must have a valid reason for dismissing an employee or that they have acted reasonably in the circumstances in that an adequate investigation must have been conducted prior to dismissal. The employer was required to have taken the statutory minimum disciplinary procedure required by law in order to dismiss the employees legally. The employer could have sent a written notice to both employees stating the ground or conduct that led them to disciplinary action. It also may contain the reason why the employer has the ground to discipline Praveen and Joshua. In matters where the reason may be of weight, the employer could have suspended both Parveen and Joshua prior to dismissal. They should be told about the reason of the suspension. If a manger filed a complaint against Parveen and Joshua, a fair, unbiased and reasonable investigation should also have been conducted and copies of the result of the investigation should have been furnished to both employees. This could have been the first step of the statutory procedure. A meeting should have been arranged to discuss the issue against Parveen and Joshua as the second step on the statutory procedure. The meeting should allow for adequate time for both Parveen and Joshua to prepare, it should have taken place in a private place to avoid unnecessary interruptions Considering that the contents of the employment contracts of Parveen and Joshua were not specified, and that the basis of their dismissal was not due to expiration or non-renewal of their contract, they may charge for unfair dismissal. In consideration of the length of service by Parveen and Joshua exceeding the one year period, they may also push for claim to an employment tribunal for unfair dismissal within three months of the date of dismissal. If Parveen and Joshua win their case, they may choose among three remedies which are: 1. Re-instatement or getting back to their old job with the same terms and conditions 2. Re-engagement or change of job but of the same employer, or 3. Compensation. 3.What remedies may they seek following their dismissal There are two claims or charges Parveen and Joshua may seek for following their dismissal: breach of contract or unfair dismissal. For breach of contract, both employees may claim that they were not properly notified about their dismissal or that the contract has not yet expired and un-renewed. As the contract is binding and serves as an agreement between employer and employee, as long as the "terms" were not followed. The terms of the contract are the duties and obligations of employee and employer. It usually covers the period when employee accepts a job offer until properly ended through a notice or expiration. Generally, the law requires that within two months of starting work, an employee is entitled of a written statement of employment particulars with the following: pay, hours of work, holiday entitlement, sick pay arrangements, notice periods and information about disciplinary and grievance procedures. Any change about the contract must be agreed upon by writing between employee and employer. For unfair dismissal, Parveen and Joshua's employer must prove that it had been consistent and have not dismissed the employees for something that they let other employees do. The Employment Act 2002 which came into force in October 2004 provides for the statutory dispute resolution procedures obliging employers to follow certain disciplinary steps for their staff. Regardless of length of service, employers must ensure to follow these minimum rules. Even when an employee is charged or alleged to have committed misconduct, a proper disciplinary process must be followed with the objective to improve conduct. It is also necessary to distinguish "misconduct' as this must be dealt with by a disciplinary process. As mentioned earlier, the process includes a written notice to employees Parveen and Joshua, a proper investigation of which there must be an assigned investigator, a disciplinary hearing where an impartial, and a notice to Parvin and Joshua as Outlaw.com suggests to contain the following: "full details of the allegations that have been made and why the conduct is not acceptable, what will be discussed at the hearing, including a clear indication that the hearing is a disciplinary hearing and that depending upon the outcome of the hearing, disciplinary action may follow; the date, time and place of the hearing; an offer to rearrange the date, time and place of the hearing if it is not suitable to the employee; details of who will be present and what their function will be, including details of who the company will be calling as witnesses; confirmation that the employee is entitled to be accompanied at the hearing by a fellow worker or trade union official; confirmation that if the employee intends to have fellow employees as witnesses, they will be given reasonable time off work to attend the hearing; any relevant evidence, including witness statements from company employees; and an assurance that no conclusions have been reached or will be reached until the hearing has taken place." During the hearing, Joshua and Parveen must be informed by the chairman of the purpose of the hearing, identify all those in attendance, and then explain the allegation of misconduct. After this, the investigator will be asked by the chairman to state the case against Parveen and Joshua and may call the witnesses, if not maintain the witnesses confidential The investigator may explain contents of the presented documents. Both Parveen and Joshua may seek clarification, ask questions and present their side of the case and they may also call their own witnesses and they may also take this instance to ask an apology. Lastly, the chairman may ask what they need to add or say. In the instance where Parveen and Joshua were proven to have done a misconduct, then a disciplinary action may be justifiable and that the disciplinary action is proportionate to the misconduct, but reasonably, there has to be a first warning and final warning prior to dismissal. In an unfair dismissal case filed by Mr. Styles in "Mr Styles v London Borough of Southwark 2006", the employment appeals tribunal found that there had been reasonable behaviour on the part of the employer as a head teacher of the school wrote to Southwark on a series of allegations against Mr. Styles as "threatening behaviour and intimidation, failing to do the job of a satisfactory standard, and failing to follow reasonable instructions," (HRM Guide, 2006). Prior to the dismissal of Mr. Styles, a disciplinary hearing took place of which Mr. Styles have chosen not to present evidence nor have he chosen to call any witnesses. Reference: Department of Trade and Industry. "Employmant Matters." 2006. From http://www.dti.gov.uk/employment/employment-legislation/employment-rights/index.html Employment Law Solicitors. "The Employment Law Solicitors Disciplinary Procedures." 2006. From http://www.theemploymentlawsolicitors.co.uk/disciplinaryprocedures.php HRM Guide. "May 30 2006 Employment Law Enews." May 30, 2006. From http://www.hrmguide.co.uk/hrm/steele/may06-3.htm Out-law.com. "Disciplining an Employee." Prinset Manson. June 2005. From http://www.out-law.com/page-5801-theme=hivis Royden, David. "Dismissal Procedures." 2006 from http://www.roydens.co.uk/content32.htm Read More