Employment Law Problem - Essay Example

EMPLOYMENT LAW Hussain was on a zero-hour contract and he wanted to shift to a permanent employment contract. An issue ofwhether he deserved payment when he slept on job falls under the Zero hours contract. The legal issues that come up in his case include that of determining his employment status and his legal rights to full employment benefits1. The case is based on the law of zero hour’s contract, meaning that he only worked when called upon to do so. Hussain has been working in Caring Community Ltd for six years on the 6pm to 6 am shift until later when his shift was reduced to 6 pm to 10 pm. The change in time prevents him from seeking employment elsewhere. His case is different from that of his fellow workers who can manage to work for other employers2. He is restricted from engaging in other activity because he has to be around his work place just in case residents require his help. His job requires that he remains standing throughout his job time and he is therefore qualified for employment on full time compensation. 3 Husain’s agreement with his employer indicates certain aspects that qualify him as an employee and not merely an individual on contract: he is obligated to undertake work even after the end of his shift, the obligation is mutual and he is expressly and impliedly under the control of his employer to a sufficient degree. Mutuality of obligation between Hussain and Caring Community Ltd requires him to undertake work when he is not in his shift thereby granting his employment status and rights. In the case Wilson v Circular Distributors Ltd, there was a provision similar to that of Hussain and Caring Community Ltd. In the case, Mr. Wilson was not required to be paid at times when there was no work available for him. His employer, Circular Distributors Ltd, argued in a tribunal that the provision of ‘no work no pay’ did not equate into an employment relationship4. However, the employer’s appeal tribunal ruled that owing to the fact that Mr. Wilson and his employer had a mutuality of obligation where Mr. Wilson was required to accept the job if and when it was available; it amounted to an employment relationship5. From the ruling, he would be paid even for the hours that he was not working. Applying his precedence in Husain’s case shows that he is entitled to payment for the hours that he is sleeping based on mutuality of obligation and his status as an employer6. Hussain is entitled to payment even when under rest. According to employment rights act, employees working under the zero hour contracts are to be paid the time spent off their work7. Therefore, Caring Community Ltd was liable of paying Hussain even when he was asleep8. During the dismissal of zero hour’s contract workers, he has the right to claim unfair dismissal and failure to be issued with a notice. There was, therefore, need to give him prior notice of termination of his contract. He is, therefore, in a position to claim for redundancy payment. Having worked in Caring Community Ltd for over two years, he needed to be paid9. In regards to the case of Isla and Rita, their cases fall under the category of unfair dismissal. Isla was an employee for 10 months and was, therefore, not on full employment. This is because the law had changed whereby an employee will only get protection after working for 2years. Therefore, Isla has no obligations to claim for unfair dismal10. Under the current law, the period of employment begins when the employee is due to start work under the contract and not from the date on which she actually commences work11. Rita had worked in the Caring Community Ltd for 8 years and this makes her a full employee. She was termed as a full employee since she had been in the company for more than two years12. An employee is protected by law against unfair dismissal by their employer. Rita who was an employee had the right to claim for unfair dismissal. Both Isla and Rita were unfairly dismissed as they were not given a dismissal notice in time. The notice for their dismissal came at the same time their contracts were terminated.13.The statutory length of the notice is one week in which an employee is entitled to after the first month of employment. As such, even Isla was eligible for a notice of one week which she was not granted14. Rita was also given a short notice15. An employee under notice, and who has worked for over one year but currently two, has a right to written reason for her dismissal within fourteen days of requesting it. This was opposite in Rita’s case who had been employed for more than two years. She was given a short notice than it is required, and immediately she was issued with a dismissal letter, she was informed that her contract was terminated. Therefore, Rita has the right to claim for unfair dismissal under a short notice. Isla and Rita’s reasons for dismissal should be based on a fair judgment. However, this did not happen in their case with Gordon. He did not give genuine reasons for dismissing Rita and Isla rather he had his own interest in the job16. His action of dismissing his employees was not lawful. The fear of losing his job caused him to terminating their contract without offering them an appeal. The reason of their dismissal was not on redundancy, misconduct and their contract was not over17. During dismissal, the employer must arrange a full investigation for the employees conduct. During the dismissal the conduct of Rita and Isla was not investigated to determine if the allegations leveled against them were true18. Gordon, dismissed his employees as a result of his tempers, but never took time to investigate their action. This displays that their sacking was both unfair and unlawful. It was necessary for Gordon to undertake a detailed enquiry if at all the employees had tempered with the stock. Finally, he did not give them a chance to either negotiate or appeal their cases19. He did not hold any meeting with them to discuss their case. Rita and Isla were not given any opportunity to discuss the case with Gordon. He did not give the employees a chance to discuss the case to probably prove them guilty20. In a case of unfair dismissal, an employee is entitled to compensation.21 Rita and Isla were dismissed and never paid. They are entitled to claim payments which were lost during the termination of their contract. The maximum compensatory award for unfair dismissal was £76,574 from April 2014 plus an appropriate basic award22. Both the employees were entitled to claim for compensation. Rita and Isla’s compensation was based on number of losses that they encountered23. The payments were to be on the net pay in lieu of notice or period for which the contract still had to run and payment for any period of employment or lower net pay. Both Rita and Isla had lost their future earnings, statutory rights and their pension which they were supposed to claim for. Rita and Isla are advised to seek for reinstatement in their workplace. They should be reinstated to the positions that they were working in before dismissal. Once an employee is reinstated they receive their full payment and given full restorations of their rights. They can also seek re-engagement in Caring Community Ltd. This means engaging them in a comparable employment opportunity in Caring Community Ltd24. There was need that they be given a chance as they were dismissed under unfair basis. Quality care limited employees are supposed to claim against unfair dismissal. For example, In Litster v Forth Dry Dock & Engineering, the employees that were dismissed few hours before the transfer of business were entitled to claim for unfair dismissal25. Therefore, the forty employees that were dismissed before the transfer of Quality Care Ltd were entitled to claims against their unfair dismissal. They were supposed to find another employment for its workers before dismissing them26. Quality Care Ltd had a defense for the claim raised by the forty workers based on their employment27. The forty employees were not paid by Quality Care Ltd and, therefore, they entitled to claim payment from the company. The argument of Quality Care Ltd was based economic constraints the company was facing. The company had been experiencing financial breakdown and, therefore, it was not liable for any claims made by the employees. Following the unfair dismissal of employees from Quality Care Ltd, which came because they had not been paid prior to their dismissal, the employees have a valid claim for the redundancy payments28. The law in relation to unfair dismissal has had a significant impact on the way in which redundancy is dealt with as a failure to follow a correct procedure could result in a claim for unfair dismissal29. Redundancy payments are paid in line with the basic award of unfair dismissal and, therefore, a claim can be made. The payments recognize the employee’s past service to his employer and has no regard that the employee may be lucky enough to have another job waiting for him30. The employees are entitled to claim the payments for their services in Quality Care Ltd. The Quality Care Ltd transferred its ownership to Caring Community Ltd. There was a transfer on undertaking, whereby the business was transferred from one person to another. However, Quality Care Ltd is not entitled to the payments of its employees. This is because, The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) protects employees terms and conditions of employment when a business is transferred from one owner to another31. Therefore, an employer is liable to cater for the payments of the employees that he or she inherits from the other company. So, Community Caring Ltd is entitled for payments of the new employees from Quality Care Ltd32. According to the law, employees who were working under zero contracts were entitled for claims33. They were not given prior notice for their dismissal. Their dismissal was done unfairly. Therefore, the workers had the right to claim against unfair dismissal and payment redundancy. Quality Care Ltd transferred the ownership of the business due to economic constraints. The company lacked sufficient funds to pay the forty employees their redundancy payment. According to s166 Employments Right Acts, if an employer fails to pay redundancy payment to their employee the states should come in and pay on their behalf. Therefore, the company is entitled to claim for payments of its employees from the state34. Caring Community Ltd can claim redundancy as the reason for dismissing it employees. This is because, under the Employment Rights Act 1996 (s98 (2) (c), redundancy is provided for as a potentially ‘fair’ reason to dismissing employees. Furthermore, the company has followed all the procedures for rendering the employees redundant by issuing them with redundancy notices. The rationale for the redundancy notice is attributed to the financial difficulties that the company is going through after acquiring Quality care Ltd that overstretched its finances thereby rendering it incapable of retaining all those employees.35 The employees who were working on zero hour’s contract were entitled to some claims from their employers. As an employee working under zero hour contracts, one is protected from unfair dismissal36. The sacking of the ninety employees was unfair and unlawful. The law protects the workers from unfair dismissal without notice. In prevailing case, the employees were not issued or alerted concerning their dismissal and received no remuneration. This is, therefore, was a valid claim that the workers held because they were not issued with prior notice of their dismissal. They were not entitles to any redundancy payments by their employers, therefore, they were entitled to claim their payments37. REFERENCES 1. Employment rights Act 2002. 2. St Ives Plumouth Ltd. V Haggerty [2008] 3. Wilson v Circular Distributors Ltd 4. White & Anor Troubeck SA [2013] UKEAT 0177/12 5. Tolley’s Employment Law Handbook, 26th Ed, 20122-343; , pp34 6. Yorkshire windows company ltd v Parkes UKEAT/0484/09 7. s98 (1) Employment rights Act 2002. 8. Stringfellow Restaurant Ltd v Quashie [2012] EWCA Civ 1735 9. Salvation System FOORS (UK) Ltd v Daniel(1982) 10. Army V Dewsbury [1982] 26th Ed. 11. s230 Employment Rights Act 1996 U.S. 12. S94 (1) Employment Rights Act (1996). 13. West v Kneels Ltd [1980]). 14. GisdaCyf v Barratt [2009] EWCA Civ 64 15. S.92 Employment Rights Acts. 16. s98(2) Employment Right Act (or s.98(1)(b). 17. Stuart v London City Airport UKEAT/0273/12/BA 18. Kelly v University of Southampton Appeal No. UKEAT/0295/07/ZT 19. British Leyland (UK) Ltd v Swift [1981] IRLR 91 CALord 20. O’Laoire v Jackel International Ltd [1990]. 21. Palmanor v Cedron [1978] IRLR 303 22. Norton Tool Co Ltd v Tewson [1972] ICR 501 23. Tool Co Ltd v Tewson [1972] ICR 501 24. Ss 114 and 115 Employment Right Act. 25. Litster v Forth Dry Dock & Engineering Co Ltd [1989] 26. Berriman v Delabole Slate [1985] 27. Employment Rights Act 1996 28. Wheeler v Patel [1987], 29. James W Cook & Co Ltd v Tipper 1990 30. Pt. XI of the Employment Rights Act 1996. 31. Woodhouse v Peter Brotherhood [1972] 32. Spijkers v Gebroeders [1986] ECR 1119 33. Pfaffinger v City of Liverpool College [1996] 34. Employment Rights Act 1996 (s98(2)(c). 35. Byrne v Kinematograph Renters Society Ltd [1958] 2 All ER 579 36. Addis v. Gramaphone Co Ltd [1909] AC 488 37. Bliss v. South East Thames Regional Health Authority [1987] ICR 700). Read More