Legal Framework in Employment - Essay Example

Legal Framework in Employment The case is related to the employment law of dismissal and employee rights in case of sexual harassment. The concernedparties are the employers and employees, and the case analysis identifies different points in the case relating them with the law provisions. According to the law, an employer can only fire an employee if there are substantial reasons that can justify the decision of dismissal. According to the Employment Rights Act 1996 Section 94 (1) employees bear the right of not being unfairly terminated. Sec 98 of the act asserts that before dismissing an employee, the employer must be fair and have concrete reasons for the decision. The dismissal of the employee must be rational in terms of misconduct, qualification, capability, redundancy, illegality; or other significant reasons of fair dismissal. Section 98 (4) says that the fairness of a dismissal is based on the behavior of the employer who should give strong reasons for making a dismissing decision for an employee. This paper analyzes the fairness level of the decision made in the case with legal sanctions and the advice to the victims about what legal assistance they could seek given under the law[You05]. As per common law an employer has the right to dismiss an employee with prior notification. Terminating an employee without prior notice is a ‘wrongful dismissal’ against which an employee can sue the employer. Unfair dismissal is created by statute law, and it may occur even with proper notification. The Employment Rights Act 1996 has given six potentially fair reasons for terminating an employee. The employer has to ensure that the decision of dismissal, he has made justified and is conducted fairly[HRB14]. Employment Relations Act 1996, section 98 (4), provides details to declare a dismissal fair or unfair. The employer is responsible to justify a fair dismissal and likewise give reasons for unfair dismissal1. In any case, if an employer is unable to prove that the dismissal is justified as per the Employment Relations Act 1996, it will be declared as unfair [Gov14]. Not only the law provides support to the employees the employers also have equal defenses to claim the fairness of their dismissal decision.In the case [British Leyland (UK) Ltd v Swift, (1981)], the employer’s decision was declared as ‘fair’ by the court of law as the employer justified his decision claiming to terminate an employee due to misconduct [The10]. In another case [Iceland Frozen Foods Limited v Jones, (1982)], the employer terminated a night-shift foreman at the warehouse. The employer held the employee responsible because he could not secure the warehouse at night which resulted in slow production. The court declared the dismissal unjustified and unfair on the ground of the given justifications. The tribunal decision about the dismissal in this case indicates that while making a decision about the fairness of a dismissal the behavior of the employer has to be considered[You05]. Employment Relations Act 1996 section 98 has given the right to the employees of not getting unfairly dismissed. The section 94 of the law protects employee rights and clearly defines the employer’s authority to dismiss an employee (Employment Relations Act 1996, s 94.1). Implementing this law in our case under section 94 of Employment Relations Act 1996, Craig has complete right to act against his unfair dismissal from the restaurant2. According to the section 108 of the act in order to utilize the employee right mentioned in section 94 the employee has to qualify certain conditions. It is stated that the employee must have been working for at least one year in the organization to qualify section 94 laws. Craig had been working in the restaurant for nine years, which indicates that he must have the employment contract. Similarly, he must also have signed the dismissal contract as per Employment Relations Act 1996, section 110.3. Painter and Homes have categorized the procedure of dismissal into three stages. The method can be used by employers for making dismissal decision for employees who have shown misconduct on the job [Pai08]. According to the three stage procedure, in the first step the employer has to write down employees’ misconduct details send them a copy and invite for meeting. In the second stage the employer has to meet with the employees giving them a fair chance to express their case and thirdly if the employee appeals the employer must invite them for meeting to deduce the final decision [Fit14]. Considering the three stages it is found that the employer Rhodri did not follow the three stages of the dismissal which also declares the dismissal unfair. The Employment Relations Act 1996, section 98.4 also states that the court must also keep in mind that the employer was reasonable or not in terminating an employee. The procedural fairness analyses if the dismissal has been conducted by following fair dismissal procedure. In the case [Polkey v AE Dayton Services Ltd, (1987)], the employer did not consult with the employee considering that consulting the employee would not impact the dismissal. Lord Bridge declared the dismissal to be fair substantively, but unfair by the procedure, therefore, the compensation rate should be decreased [swa14]. In the case of Craig, Rhodri did not follow the procedure so it was procedurally unreasonable and substantively unfair too, which indicates that Craif has full right to be compensated against his loss. Various provisions in the Employment Relations Act 1996 should be followed in deciding the fairness of a dismissal. According to Employment Relations Act 1996, section 98.1 the employer is responsible for proving that the dismissal is made due to a justified reason. The justifications that an employer provides must be associated with their capability and qualification in daily activities3. Redundancy Other important factors to be considered are employee’s conduct and if the employee can continue working without breaching the Act. It also focuses on if there is redundancy in the company, or any other considerable reasons are present (Employment Relations Act 1996, section 98.2). Capability It is the right of an employer that it can prevent his business from being affected any employee’s incompetency or inefficiency. However, the employee also has an equal right to be protected from unfair dismissal, according to the law 4. The employer is also under an obligation as per Employment Relations Act 1996, section 98.1, to provide a justifiable reason for the dismissal of an employee. The law asserts that the given justifications must be related to the capability of regular working activities. In the case [Whitbread and Co v Thomas, (1988)] the employer dismissed his three employees due to low competence and poor performance. ACAS Code and Practice The ACAS Code of Practice on Disciplinary and Grievance Procedures states that misconduct is included in disciplinary situations [ACA09]. The performance issues of employees lie under capability procedures. However, in any procedure the basic rules of fairness of dismissal have to be followed.The ACAS Code (paragraph 18) suggests that if an employee shows misconduct or do not perform well, he/he must be given a written intimation first.Evaluating the given case it appears that Craig performance went low because of the incompetency of his assistant and the illness of his wife. According to the standard procedure Rhodri must have given a written warning to Craig for intimating him but he didn’t follow the procedure. It is also important to note that as per Employment Relations Act 1996, s 98.1 the employer has to prove incompetence or inefficiency of an employee as a legal justification for the dismissal. In the case [Alidair Limited v Taylor, (1978)] the employer dismissed an employee due to incapacity, on the claim of that employee the court rendered the dismissal fair because the dismissal was done due to incapacity [Xpe14]. Thus, for dismissal due to incapacity if the employer believes that the employee is incapable based on reasonable facts no further evidences are required. Evaluating Craig’s record in the employment it is found that during the nine year tenure no mistakes or complaints have been recorded against him particularly any evidences of misconduct and incompetency. Instead a long career in one employment shows his dedication and loyalty, therefore, the dismissal made by Rhodri is unjustified as Craig was neither incompetent nor arrogant. Qualifications It is a very important declaration in the Employment Act, focusing on the credentials of the employees5. It is said that employees working on a specific position must have sound academic qualification (degree, certificate or diploma) depending upon the job nature (Employment Rights Act 1996, section 98.3b). As mentioned in Employment Rights Act 1996, section 98.1, the employers must provide a justified reason for dismission an employee. For instance, if the employees show a proven record of incompetence, the employer will be fair in making a dismissal. In the case [Blackman v Post Office, (1974)], the employer has set a test for evaluating employee’s qualification. The employer used the dismissal right against the employees, which could not clear the test. In the given case Craig was an efficient cook, he was capable of fulfilling his tasks on time but his assistant Rob seems incompetent. Carriage was responsible as an employer to terminate Craig’s assistant who caused trouble to Craig. This could have been done if proper analysis has been conducted on the problem by Rhodri prior making a decision by following standard dismissal procedure 6. Conduct: If an employee is dismissed due to misconduct, the employer is obliged to show that he believed that the employee was guilty of his misconduct when he was dismissed. In the case [British Home Stores Ltd v Burchell, (1978)], it was held that the employer must have conducted an investigation against the employee’s misconduct and must have justifiable reasons for holding the belief that the employee was guilty of the misconduct [McM11]. In the Craig’s dismissal case, Rob was struggling with his job, but Craig being the supervisor did not report this to Rhodri. Therefore, Rhodri thought that it was Craig who has been showing incompetency for one week. The case does not show any record of disciplinary procedures performed against Craig who indicates it was Craig’s first mistake, therefore, his competency level cannot be judged based on his one mistake. Craig could also claim that his dismissal was not reasonable. According to Employment Rights Act 1996, section 98 the dismissal should be reasonable. The employer must provide subjective reasoning and a justified opinion with a written statement to rectify the dismissal. Rhodri did not provide any evidence of disciplinary issues against Craig. Craig’s behavior did not come under gross misconduct as he did not threaten anyone but showed irritation of Rhodri’s attitude. Substantial Reasons: There are other substantial reasons which an employer may give to prove his dismissal decision justified and reasonable. In the case [Hollister v National Union of Farmers, (1979)], the reason for dismissal was beyond the misconduct, qualification or incapacity [Tay12].The employee rejected to accept the terms of re-organization and therefore he was dismissed. The tribunal declared the justification of dismissal as a substantial reason, therefore the employee did not need to be consulted. Craig’s duty of care Rhodri may justify his dismissal decision based on Craig’s misconduct as Employment Rights Act 1996, section 98.4 clearly declares misconduct to be potential justification for fair dismissal. In the case [Townsend v Gillette UK Ltd, (2012)], the dismissal was fair and was conducted due to misconduct. The employee threatened and abused the employer in the workplace. This reason was strong enough for complying with the sanctions of the employment law which asserts that gross the misconduct is justifiable reason for employee dismissal. In the case of Craig vs. Rhodri they had a strong debate on the situation. Rhodri may point out this fact holding it fair. However, it order to declare a dismissal to be fair or unfair there are various factors which are required to be considered. The most integral is to conduct an investigation against the issue to figure out the main reason behind the problem 7. Giving time to analyze the problem may prevent hasty and unfair dismissal decisions. If Rhodri could have evaluated the reason behind Craig’s lack of performance, he would have realized that Craig was worried due to his wife’s health condition and also he was managing with Rob who was showing incompetency at work. All these tensions made him react awkwardly with Rhodri and Craig can use this as his employee right against the employer (Employment Relations Act 1996, s 94.1). Reasonableness of Dismissal and Procedure of Dismissal In the case [British Home Stores Ltd v Burchell, (1978)], the employee was dismissed due to misconduct the employer had an obligation to show his belief about the guiltiness of the employees prior his dismissal. The law states that the employer must have justified reasons for holding this belief, and he must have inquired about the case. In this case Rhodri considered his decision fair because of the incompetency shown by Craig on the job. Craig also did not report about the lack of performance of Rob, his assistant to Rhodri, further more Craig did not clear his position in front of Rhodri when he rendered him incompetent. Based on these reasons Rhodri was ignorant of Rob’s inefficiency and Craig’s personal problems so he dismissed Craig. In the case [British Home Stores Ltd v Burchell, (1978)], the employment tribunal held three tests for analyzing the fairness of the dismissal. The employer must believe that the employee is guilty of his conduct and he his justifications for dismissing a person are based on firm ground. Secondly, the employer is obliged to show evidence of inquiry he has conducted to figure out the root cause of the problem and that the dismissal decision is not emotional or hasty. The employer must show procedural fairness in order to claim his dismissal decision to be fair. In the case [Sainsbury’s Supermarkets Ltd v Hitt, (2003)], the tribunal declared the dismissal to be unfair because the employer could not prove that he has conducted a fair investigation like giving an opportunity to the employee to justify his act. Therefore, it is found that the employer’s investigation method should follow the reasonable responses test and prove that the inquiry has been conducted fairly and the prospects are not hypothetical. In Craig’s situation, he acted odd because of having tension about his wife’s health and his assistant’s poor performance. To follow fair procedural dismissal Rhodri should have scrutinized the problem behind Craig’s inefficiency instead, of scolding and dismissing him right away. Craig had a right to explain the reason behind his incapacity as per Employment Relations Act 1996, section 94. Rhodri could make a fair dismissal if he had investigated Craig about the problem he was facing. It is important that the court should consider that the employer has followed the ACAS Code of Practice on Disciplinary and Grievance Procedures to ensure that the misconduct was gross enough to have an employee dismissed. Even if the employee has conducted severe offense which lies under gross misconduct the law gives the right of appeal to the employee in order to explain his act. According to Employment Rights Act 1996, section 3(1)(a), that the terms of employment shown at the time of employment should include the disciplinary rules which have to be followed. Furthermore, the employer should also show the track records of disciplinary procedures and their outcomes performed with the employee during the employment 8. When a dismissal decision has to be made, the tribunal or court would ask for justifications behind the dismissal. In the case [Devis (W) & Sons Ltd v Atkins (1977)], the court declared the decision to be unfair because the employer could not bring enough reasons to justify the dismissal based on misconduct. So, the employer had to bring evidence of misconduct to the court after dismissal. In case of Craig for ensuring reasonableness of the dismissal procedure and the fairness of dismissal Rhodri would have to provide evidences of Craig’s misconduct after the dismissal. A dismissal is declared as unfair if an employee is unable to perform well or showing negligence due to personal problems or stress. In case of Craig, he was suffering from stress due to severe illness of his wife as she was admitted in the hospital, and also his assistant was unable to bestow expected performance. Rob was making mistakes in preparing caramel biscuits, Craig already occupied with worries also had to manage Rob’s problems. These factors were important to be considered before dismissing Criag as these are the core reasons behind Craig’s low performance. The physical and mental health of employees should be taken into account while judging their act. If a dismissal has occurred based on an argument, then it is very important to judge whether it was fair or not. Rhodri argued with Craig in front of entire office staff. He should have performed some investigation to know what has suddenly upset the progress of Craig, who has been working efficiently for past nine years. Rhodri made no inquiry about Craig’s mental condition and his behavior. On investigating about Craig’s character and behavior on the job, no testimonies were reported by his colleagues. There is no proof or witness who can prove that Craig showed gross misconduct with Rhodri therefore, the dismissal appears unfair. Craig can claim for his unfair dismissal in the court by fulfilling certain conditions. Craig must ensure that he satisfied the desired qualification level of the job position (Employment Rights Act 1996, section 98 .3). Working in the Carriage for nine years Craig easily satisfied the qualification and capability criteria. Craig would also had to prove that he had been dismissed in the court. As Rhodri terminated him by sending a text message it would be difficult for him to prove this in court. Therefore, he would have to show the text message to the court to prove his claim. According to the Employment Right Act 1996, section 98, Craig can claim for his unfair dismissal against Carriage based on the fact that he had not been given notification prior being dismissed. And also he had not been given a chance for explaining his attitude which was by law his right. Craig bears the right to claim against the employer so that he would be compensated for paying his wife’s medical expenditure 9. He can also claim for being compensated against unfair dismissal and loss of earnings as the employer breached the employment contract (Employment Right Act 1996, section 117.1). Compensation: The amount of compensation given to the employee as a result of approved claim is very important to be determined. If employees have been dismissed unfairly they have the right to get equal compensation as per the law[Lew12]. In the case [Norton Toll Co Ltd v Tewson, (1972)], the court declared that the compensation of the unfair dismissal would only extend to financial loss and not in the result of pecuniary loss like hurting feelings or disgrace. In this case Craig can claim against the employer as he was the only bread earner for his family and suddenly losing a job would cause severe financial loss to him and his dependants. Particularly in the situation where his wife was hospitalized, he could claim for his debits to pay the hospital bills. Although Rhodri insulted him in front of other colleagues, but the court of law does not provide any compensation for that therefore focusing on the joblessness and financial crisis, he would have met due to unfair dismissal, Craig may claim against the employer. Sexual Harassment The Protection from Harassment Act 1997, section 8 (1) provides provisions against workplace sexual harassment. The act states that one should not do anything which counts as sexual harassment, it occurs in situations where it would appear to a reasonable person to subject to harassment10. The Equality Act 2010, section 26 (1) defines harassment as ‘ A person can be called as being harassed if an unwanted conduct has performed with him/her against the protection [Sol14]. In this case Harold took benefit of Melissa’s condition and showed unwanted conduct which is covered by the Equality Act 2010, section 26.2. Therefore, Harold’s behavior would be considered as sexual harassment. The Employment Rights Act 1996, section 100 (1)(d) asserts that employees have right of being protected against all types of dangers including sexual harassment. In the case [Harvest Press Ltd v McCaffrey, (1999)] court decided that as per law the employer has the responsibility of protecting its employees within the workplace boundaries. In case of Melissa it was Rhodri’s responsibility to follow the law and ensure protection of its employees against all kinds of harm including harassment. Furthermore, if any act of harassment occurs at a work place the employer is responsible for it equal. In the case [Majrowski v Guys and St. Thomas NHS Trust, (2006)] the court held that employers are responsible to ensure that the employees are not harmed, bullied or harassed at the workplace. Therefore, Rhodri was responsible to protect all female staff from being sexually harassed by male members11. The Equality Act 2010, s109 (1) makes the employers liable for any illegal actions of the employees. Further, it is explained that it does not matter if the employer has prior information about the illicit act or not (The Equality Act 2010, section 109.2). Therefore, being an employer no matter if one is involved or not he/she is considered responsible for any wrongful act at the workplace. Equality Act 2010, section 109. 3 states that the employer should take immediate action to protect the employees. Like in this case Rhodri should have warned Harold for being unreasonable with Melissa and take measures to prevent such act in the future (Equality Act 2010, s109. 4). Conclusion After evaluating different aspects of the case in the light of the Equality Act 2010 and the Employment Right Act 1996, it is concluded that both Craig and Mellisa have right to claim against the employer. The dismissal of Craig was unfair and he has all right to claim compensation against the financial loss he would have to bear. Furthermore, Rhodri did not perform his duty to protect his employees from the dangers at workplace which also includes sexual harassment; therefore, Melissa can also take the appeal to the court to get justice. List of References You05: , (Younson et al., 2005), HRB14: , (HRBullets, 2014), Gov14: , (Gov.uk, 2014), The10: , (The Law Gazette, 2010), Pai08: , (Painter & Holmes, 2012), Fit14: , (Fitzgerald and law, 2014), swa14: , (swarb.co.uk, 2014), ACA09: , (ACAS, 2009), Xpe14: , (XpertHR, 2014), McM11: , (McMullen, 2011), Tay12: , (Taylor & Emi, 2012), Lew12: , (Lewis & Sargeant, 2012), Sol14: , (Solotoff & Henry, 2014), Read More