Unfair Dismissal - Assignment Example

Unfair Dismissal Claims of Unfair Dismissal are regulated under Section 98 of the Employment Rights Act of 1996 and 20021. Under the New EmploymentAct of 2002 a three step dispute resolution procedure has been set out2, which employers are obliged to follow. Employees must be allowed a hearing and the right to appeal the decision to dismiss them. In the case of Sarah, she therefore has good grounds to file an unfair dismissal suit because she has not been provided the three step dispute resolution procedure. In the case of Simon however, he was provided the hearing, but the proceedings can be contested as being unfair because of the element of intimidation. Furthermore under the new regulations that have been introduced into the Employment Act of 2002, the right to be accompanied on disciplinary and grievance hearings has been introduced3, in order to preserve worker rights. It may be noted that Simon was not accompanied by anyone, neither was he shown the statement that listed all the wrongs against him. Furthermore, there is no indication he has signed a contract with his employer, as Sarah has, which could further limit his recoveries. The important aspect that needs to be considered with respect to these two cases is as follows - Since the new computerized accounting system was introduced at Sarah’s office and only one day of training was provided, Sarah may be said to be engaging in atypical work since December 2005 and is being dismissed for her inability to function in that capacity. Simon on the other hand qualifies as an employee who fits into the labor category of employees, and employees doing atypical work as well as those in the labor category have less protection where unfair dismissal is concerned. The laws pertaining to unfair dismissal have been contested due to their inherent limitations, for example only workers who have been employed for a period more than two years will be entitled to claims of unfair dismissal. Employees in the lower tier such as Simon, have less protection against unfair and unreasonable dismissal. Current laws also do not make adequate provision for unusual working conditions such as atypical contracts where a worker may be hired as and when required and thus finds it difficult to prove continuity of service for purposes of claims against unfair dismissal.4 Workers cannot always be classified strictly as employees, since there may be a range of services provided which do not fall into this category. Some examples of such services are those provided by independent contractors or self employed people, freelancers, temporary workers, agency workers, home workers and even causal laborers. In case of such workers, there is less degree of control exerted by the employer and these employees may enjoy a wider range of discretion in the performance of their services. Moreover, in cases where a worker may be hired by an employer/client using the intermediary services of an agency, such workers do not qualify as employed by the employer, neither do they qualify as self employed under the definition of worker set out in Section 230(3) of the Employment Act. Rather they fall into a class known as “sui generis” – “the contract is not a contract for services but a contract sui generis – a different type of contract from either of the familiar two.”5 The courts apply a range of tests that are set out below in order to determine whether a worker can be classified as an employee, however, these tests have faced criticism on the basis that they do not address the changing work patterns and relationships that have evolved in a modern day environment.6 In assesing whether or not a person is an employee for purposes of application of provisions against unfair dismissal provided under the Act, the Court will first of all consider whether there is a contract between the alleged employer and the worker. The next stage is to determine whether or not the contract is one of service - a contract of employment or a services based contract where a self employed person may be contracted to provide a particular service but may still qualify as a worker.7 In arriving at the determination of whether a worker qualifies as an employee under the Act, the four tests applied by the Courts are integration, economic realities, control and mutuality of obligations. While firms may utilize home workers and not designate them strictly as employees for tax purposes, etc nevertheless for purposes of application of statutory rights, they are considered as employees under the law, such as for example in the case of Airfix Footwear Ltd v Cope8 where a homeworker who worked five days per week as per instructions from an employer was deemed to be an employee under contract. In the case of Nethermere (St Neots) v Taverna9 the home workers had flexible, part time work hours but were deemed to be employees. In these cases the intrinsic test that was applied was the relatively lower degree of control exerted by the employer, however the judgments in these cases also took into account the hours of work and length of service. However, while the casual workers in this case were deemed to have rights, this was not so in the case of Carmichael v National Power.10 In so far as agency workers are concerned, they are accorded rights through the Employment Agencies Act of 1973. In the case of Byrne Brothers v Baird11 where the issue of Working Time Regulations was involved – provided through legislation together with the National Minimum Wage Act and Regulations to ensure worker rights even when no definite employer can be identified, the court held that the criterion of mutual obligations, due from both parties, would also apply in the case of those providing services and therefore designated as workers12. The courts also consider factors such as the length of service and payments agreed to between the parties. The question of mutuality of obligations was also an issue in the case of Montgomery v. Johnson Underwood Ltd13 where it would found to be insufficient to establish a contractual relationship between the agency and the employee, with the degree of control also being less, therefore the worker was not deemed to be an employee. Similarly, in another case, a worker who had been supplied through an agency was found not to be in a contractual relationship with the employer/client because of the intermediary role of the agency.14 The above case law demonstrates the confusion in the law that results from the lack of clear cut definitions of workers and their statutory rights under the law. As a result of the different kinds of working regulations and different kinds of contractual obligations that may exist, the end result is that such atypical workers may be subject to the same grueling conditions as regular workers and their rights may need to be addressed in the interest of fairness. Moreover, with the changing work environments, encouraging larger numbers of people to be involved in atypical work may be facilitated if they know that their rights will be protected under the law. Current laws are not clear in their provisions as to when a worker can be considered an employee and this is a source of confusion, so that as demonstrated above, the courts have decided cases on an individual case by case basis and no common criteria have emerged governing the rights of employees against unfair dismissal or other rights of employees. To cite one example, the right to receive Statutory maternity pay has been spelt out by the Social Security Contributions and Benefits Act of 1992. However, under the Employment relations Act of 1999 and the Employment Act of 2002, such rights to maternity benefits without dismissal from employment will only apply to employees and not to atypical, transitory or casual workers. Therefore, such confusion in determining the kinds of benefits and redressal procedures that can be availed of by different categories of employees can only be addressed by bringing about some uniformity in the representation of workers under the Law. The aim and objective of bringing about uniformity in grievance redressal procedures in particular, can only be addressed by extending statutory benefits to all categories of workers, rather than laying down any requirement that they must be regular employees who have been working for a specified minimum period. Introducing uniformity and according protection to all workers against unfair dismissal mandates an inclusion of all workers under a common umbrella so that common procedures are applied in the case of all employees for grievance redressal and protection against unfair dismissal through the procedural requirements set out under the law. However, the most important reason for extending unfair dismissal rights to all kinds of workers is the fact that despite their status for tax purposes they may ultimately be subjected to conditions of work as rigorous or even more rigorous than other employees and therefore are as deserving of protection under the law. Bibliography Books/Websites: Harrison, Tom “Employment Law” Harrison law Publishing http://www.thompsons.law.co.uk/ltext/individual-rights.htm www.dti.gov.uk. New Laws for resolving disputes. It’s a simple as 1,2,3 Legislation: Employment Act of 1996 Employment Act of 2002 Employment Agencies Act of 1973 Employment relations Act of 1999 National Minimum Wage Act and Regulations Social Security Contributions and Benefits Act of 1992 Working Time Regulations Cases: Airfox Footwear Ltd v Cope (1978) ICLR 1210 Byrne Brothers v Baird (2002) IRLR 96 Carmichael v National Power (1999) ICLR 1226 Construction Industry Training Board v Labour Force Ltd (1970) 2 All ER 220 Montgomery v O.K. Orenstein and Johnson Underwood Ltd (2001) IRLR 269 Nethermere (st Neots) v Taverna and Gardiner (1984) IRLR 240 Serco Ltd v Blair (1998) EAT 345 Read More