Employment Law: Keep Fit & Well Co Ltd - Case Study Example

Running Head: EMPLOYMENT LAW Employment Law No: Employment Law Introduction Keep Fit & Well Co Ltdis a renowned fitness company, which has three centres in South Sea, Cosham and Fareham. The company’s administration under the supervision of manager Cathy at the South Sea centre dismisses Abe, a receptionist based on wrong accuse of theft, which was actually done by Bruce, head of Abe. At the Cosham centre, the employees, Donald and Esme are dismissed without any specific reason. As far as the Fareham centre is concerned, the company’s administration got ready to handover the centre to Fitness Freaks along with its employees. Along with this transference, the company requires the redundancy of thirty-five employees out of total fifty employees in the South Sea centre because of bad reputation of the centre and lessening memberships. The company, Keep Fit & Well Co Ltd has a high turnover, but it is liable for unfair dismissals of employees and in case of downsizing or transferring, it is again accountable to the employees. This paper offers legal advises to Abe, Donald and Esme and finally to the employers and employees involved in the transference of Fareham centre to the Fitness Freaks, as many employees have to face redundancy. The employees are highly affected by wrong decisions taken by the company’s administration. In addition, legalization of every employment action is necessary in order to work without any legal claims. i) Claim that Abe May Have Abe has been wronged, as Cathy, the manager of the South Sea centre unjustifiably accused Abe of theft and pushed him into dismissal. She took a one sided decision based on her own will that comes into the category of discrimination. She also dismissed Abe unfairly calling legal action. She conducted the investigation after dismissing Abe, however, she was supposed to investigate the matter beforehand. In Abe’s case, the role of employment tribunal, unfair dismissal and dismissal based on discrimination must be considered in detail to come to a conclusion, as what Abe can claim for the injustice. Employment tribunal resolves conflicting situations between employers and employees and the matters, it usually solves are related to unfair dismissal, redundancy and discrimination1. In addition, the employment tribunal is also referred to be accessed as per ACAS guidelines related to disciplinary rules and procedures2. Unfair dismissal can be explained in legal terms as inability of the employer to provide a justified reason for dismissal of the employee, failure of the employer to follow the legal processing of dismissal or a dismissal based on unfair reason. An employee can be dismissed fairly if he shows misconduct, is ineligible or less qualified as per job requirements, his contract of employment has expired, there is a need for redundancy and finally, there are some statutory obligations for discounting the job of an individual such as expiry of work permit3. The Employment Rights Act 1996 regards employee termination based on unfair reason as contrary to the terms and conditions of the Act. In addition, an employee who has served more than a year for any employer can claim for unfair dismissal to the employment tribunal4. If the employer has showed discrimination, she is liable as per Equality Act 2010. Discrimination can be of any kind, sex, age, personal liking or so on. The employee who is wronged by unfair dismissal can have many remedies, which are reinstatement, reengagement and compensation. Reinstatement is getting back to old job, reengagement is offering of a new job while compensation is compensating with some award or money5. Fraud or theft come under the category of gross misconduct and can be regarded as a serious breach of contractual terms of employment with the employer6. The case of Pepper v. Reading Borough Council can be considered here as the claimant was blamed falsely for gross misconduct resulting in dismissal. She had to face malicious allegations resulting in her loss of career. The employment tribunal after hearing decided in the interest of claimant considering her claim of unfair dismissal as right7. In Farnsworth v. Derbyshire County Council, the employment tribunal found the claim of unfair dismissal as right. Ms Farnsworth faced bullying for two years including wrong allegations, fictional proofs and hateful usage of disciplinary proceedings. Remedy was offered to compensate the dismissal8. Hence, Abe can claim for unfair dismissal and can ask for remedies for the wrong done. ii) Claims that Donald and Esme May Have Donald and Esme got deprived of their jobs without providing them with the reason for their dismissal. As per statutory guidelines given in Employment Rights Act 1996 and ACAS, employees should be informed about the reasons for their dismissals. Even they must not be just dismissed, but initially warned if they have shown some misconduct9. In this situation, Donald and Esme are just informed about their leaving of the company without detailing any other thing. Due to this fact, Esme has to make some speculations about her dismissal that her involvement in the union can have dragged her into being dismissed. As per the legal description of unfair dismissal, the employees who are dismissed come under the category of automatic unfair dismissal if they are dismissed because of union affiliation or attachment10. This is again the case of unfair dismissal, as the employers must inform the employees about the reasoning for dismissal. The employers failed to give any fair reason making the decision altogether wrong and unjustified. As per common law, an employer has to give prior notice for the termination of employment of an employee so that the employee can look for another job availability. If the notice is rightfully communicated, then the employer has to face no restriction in informing the employee of the reasoning of his dismissal. However, in case of litigation, he has to give the reason for the dismissal11. In Malloch v Aberdeen Corp (No 1), the judge decided that the dismissed employee has a right to be heard before being dismissed. He accepted that the relationship between employee and employer is that of a servant and master, but when public comes in between, the employer is judged for his fair and justified treatment12. Wallace v United Grain Growers Ltd shows that employers enjoy unequal bargaining power as compared to the employees. Employees are more at stake as compared to employers. Therefore, employers should act in good faith and fair dealing before considering dismissal of employees. Employees are part of vulnerable group and must be protected by employers13. Therefore, the employees, Donald and Esme has a right to get information about their dismissal. They can claim for the information. Esme can claim for unfair dismissal pointing towards her association with the union. iii) Claims and Liabilities related to Transfer and Closure of Keep Fit & Well Co Ltd The employer of Keep Fit & Well Co Ltd has to consider various issues that may rise because of certain decisions. The transference is altogether a major issue as the employees may regard this problematic for their future working with the company. As far as redundancy is concerned, the employees working at Fareham can regard that the future step after the transfer can be their redundancy. Therefore, there must be consultation with the staff members. Redundancy in any company is not an easy task and for that purpose, the union as well as employees must be consulted. There are rules and regulations as more than twenty employees are at stake of losing their jobs. As far as requirements for the process of redundancy are concerned, fewer requirements are there concerning discussion, selection and substituted jobs. Redundancy can be described as lose of job, place or lessening of specific requirements for employees. This cannot be regarded as the lessening of workload or amount of work, but the need for employees gets reduced because the employer has better means of working with less employees14. Transfer of Undertakings (Protection of Employment) Regulations 2006 is important set of regulations designed for business transfers involving employees. As per the regulations, the employees working for a business should be protected under labour law. The transfer should not result in dismissal of employees15. The conditions in the contracts of employments for employees should not be made bad for them and the employees should be informed about the transfer, as they are the ones who are affected because of this transfer. With the transfer, the contracts of employments for the employees are terminated, but they do not get dismissed16. However, the new employer should not be harsh in implementing worse conditions for working. In Wilson v St Helens Borough Council, Mr. Wilson had to face the transfer as an employee from one school to another and this transfer made his employment terminated. The new employer reemployed him with worse working conditions. According to the judge, employees’ rights should be safeguarded in case of transfer17.  The Humphreys case (University of Oxford v Humphreys (1) and Associated Examining Board (2) discusses about transformation in working situations as a reason for acquiring constructive dismissal claim against the transferor. As per the judge’s information, the employees can consider themselves dismissed in case of a transfer if they doubt about worse working conditions with the new employer and can claim for constructive dismissal18. a. Advise to Employers Considering the situation of the company, the employer has decided to make the staff working at South Sea redundant while the centre at Fareham is to be transferred to Fitness Freaks. The employers are required to follow disciplinary rules and regulations mentioned in ACAS guidelines. In addition, the employers must be fully aware of the Employment Rights Act 1996 so that they do not perform anything illegally. As far as protection of employees’ rights is concerned, the employer should make sure that their actions should not be dangerous and damaging for the employees. The Managing Director of Keep Fit & Well Co Ltd has brought his entire staff together to tell them all what is happening in the company, which is good at his end, but he should also make sure that the employees should not have to bear worse working conditions as a result of this transfer. The processing of the company for the transfer and other legal proceedings should be legal and as per rules and regulations of Employment Law. They must be sure about redundancy of employees and in case of any substituted way, they should adopt it. b. Advise to Employees Employees have to adhere to the changes, but in case of any doubt or misunderstanding, the employees can freely claim of constructive dismissal leading them to worse working conditions. As per legal requirements, the employer has informed the employees about the transfer. However, Labour Law, Employment Law and other crucial laws regarding employees’ protection enable them to ask for protection if they consider themselves endangered. Any kind of bullying, discrimination or wrongful activity empowers them to claim against the employer. The employees have to accept redundancy, as the company has to do it because of their economical situation and as per law, the company is justified. However, as far as transfer is concerned, the employees can regard themselves dismissed, as they will be able to start a new employment with Fitness Freaks. Bibliography A Davies Workplace Law Handbook 2011: Employment Law and Human Resources (Workplace Law Group 2011) ACAS, ‘Code of Practice 1: Disciplinary and Grievance Procedures’ [2003] TSO accessed 15 March 2014. C Arup, ed, Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships (FP 2006) Farnsworth v. Derbyshire County Council [2002] H Collins, K Ewing and A McColgan, Labour law (CUP 2012) J McMullen, "An Analysis of the Transfer of Undertakings (Protection of Employment) Regulations 2006." 2006 ILJ 35, 2 116. Malloch v Aberdeen Corp (No 1) [1971] 1 WLR 1578 Pepper v. Reading Borough Council [2000] S Taylor and A Emir, Employment Law: An Introduction (OUP 2012) Wallace v United Grain Growers Ltd. [1998] 152 DLR (4th) 1, 31 (SCC). Wilson v St Helens Borough Council [1999] 2 AC 52 Read More