Employment Law: Employment Relations Act - Assignment Example

Legal Essay: Word count: 2, 960 Question I Where trade union acts are carried out at appropriate times, these acts considered legal. Employers who prohibit their workers from joining legal actions and activities conducted by the trade union shall be considered to be violating the rights of the workers to form and participate in union activities. In most cases, trade union acts are considered legal if they are performed by the employees after office hours or during office hours with the consent of the employer. In our case at bar concerning Sarah, the first thing that we need to look into to determine the legality of the actions of Sarah is the nature of her employment at Uptown College. In the facts of our case, Sarah is a Senior lecturer in the college. According to section 230(1) of the Employment Rights Act of 1996, an employee is “an individual who has entered into or works under a contract of employment” whereby that person subjects her/himself to the following circumstances and factors of employment namely, control which includes the duty to obey lawful orders of the employer, the integration which includes the grievance procedures, business reality which includes the payment method and mutuality of obligation which include the right to refuse to work ( Burchell., Deakin and Honey, 1999). Since the rights of workers and employers are widely based on case laws and not on statutory laws, we must now rely on the Where the employee entered into contract with the employer, the provisions of the contract of employment shall now govern the relationship between the employer and the employee. In the case of Sarah, the provisions of her contract of employment shall now govern. Where the terms of payments are clearly defined in the contract of employment, the employer and the employee are bound to honor the provisions of the contract. On the other hand, according to the principles of mutuality of obligation, Sarah cannot negate her duty to perform her task and still get the same compensation from her employer. Even where the contract of employment signed between Sarah and the University did not contain a mutuality of obligation clause, the obligation to deliver what is due to the parties is implied in the contract. According to the rulings of the court in the case of Stevedoring & Haulage Services ltd. v Fuller [2001]1, the general practice of employment of the company can be used as the basis for establishing the mutuality of obligation between the parties. If the practice of the college had always been “no work no pay”, then the parties shall then be bound by this customary practice in the college. Thus in the case at bar, Sarah is oblige to deliver services to the college in return for payment of salaries. My advise to Sarah in this case is to go back to work normally but continue to participate in union actions outside office hours in order for her to get her full salary. In the event where Sarah opt to follow the union’s advice not to participate in the assessment process but continue to do her other functions in the school, she will still have the right to demand for partial payment of her salary. Note that aside from assessing the performance of students and marking, teachers have other functions in the school. Since Sarah will still be serving the college even if she refused to join in the assessment process, she will still be entitled to payment for the services she delivered. Can Sarah file a claim for unfair labor practice on the part of the employer for preventing her from joining the union action? If the college insists on not paying her, even partially for the partial service that she had delivered, then Sarah can file an action for unfair labor practice. It is illegal for the college to interfere or influence the union activities of Sarah by withholding payments of salaries or threat of dismissal from work. The rights of Sarah against unfair labor practice or unfair dismissal will not be affected even if she had been with the college for only less than one year. According to the Employment Relations Act, unfair labor practices and dismissals connected to labor union activities are exempted from the 1 year continuous service requirement under the law. Question II According to Section 94(1) of the Employment Relations Act 1996, employees have the right against unfair dismissal. However, the right to complain against unfair dismissal is limited to those employees who are imbued with the relevant employment rights. Although under the new Employment Act of 2002, maternity and paternal leave are given more emphasis, the case of Arnold is already outside the coverage of the provisions of paternal leave. Note that under the Paternity and Adoption leave Regulations 2002 and the Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002, the father can only make use of the paternity leave during the actual birth of the child or during the actual placement of the child who is under 18 years of age in case of adoption. According to the facts of our hypothetical case, Arnold is currently taking care of his young child and his father. The circumstances involved in this case is already beyond the intention of the laws mentioned above thus, Arnold will not have the right to file for a complaint for unfair dismissal based on those laws. However, since unfair dismissal involves several factors, Fixit Ltd may still be held liable for unfair dismissal if it did comply with the requisites of the law concerning dismissal of employees. In order for Fixit Ltd to escape liability for unfair dismissal, it must therefore comply with the following requisites mandated by Section 98(1) of the Employment Relations Act (ERA). Note that according to the ERA, the employer must establish an acceptable and legal reason for the dismissal of the employee. According to the law, the follow reasons for dismissal are considered as acceptable (1) incapacity of the employee to perform his duties (2) misconduct during or outside office hours (see Nottinghamshire County Council v Bowly [1978]2 (c) redundancy (d) where the continued employment of the person would violate a statute (e) expiry of fixed-term contract (see North Yorkshire County Council v Fay [1986]3 and (f) imposition of a prison sentence against the employee (see Kingston v. British Railways Board [1984]4. Since the dismissal of Arnold is based on his incapacity to perform his task, we can therefore say that the reason behind his dismissal is valid. Aside from giving a valid reason for dismissal, fixit Ltd need to comply with the requisites of due notice to the employee. The dismissal is to be considered as unfair where the employee was not consulted in the process (see Polkey v AE Dayton Services ltd [1987]5. The decision in the case of Polkey was later on further strengthen by the decision of the Court of Appeals in the case of Whitbread plc v. Hall [2001]6 which now extend the test of unfairness to the procedural process conducted by the employer before arriving at the decision to dismiss the employee. In the case of Arnold, there is no clear showing that a consultation was conducted before he was given the notice of dismissal. Although he had been given warnings in the past, there was really no mention of a consultation procedure involved on the process. There was also no clear showing as to how the employer arrived at the decision of dismissing Arnold. Given the possible absence of consultation and given the governing case laws on this matter which made any dismissal without consultation as unfair on the part of the employee, Fixit Ltd may be held liable for unfair dismissal. Question III Redundancy is one of the reasons allowed under the law to dismiss employees. An employee is said to be redundant if the business of his or her employer has ceased operate, the business of his or her employer has moved to another place or the particular type of job that the employee is performing is no longer needed. In the event where the employee is declared as genuinely redundant, he or she can claim redundancy pay from his or her employer provided that he or she met the qualifications set under the law. Before a person can qualify for redundancy pay, he or she must have worked in the company for at least two years prior to the dismissal. The two year period only operates when the employee was already 16 years old or more during the time the employment relationship stated. Another requisite to qualify for the redundancy pay is that the person must not be working on jobs that are specifically excluded under the law. However, employees that are excluded under the law can still recover contractual redundancy pay. In the case of Karen who has been working for the Nordic Shipping Ltd for the past five years as a secretary in the accounts department, the claim for redundancy pay is possible. Although under the law, employees in marine vessels are included when it comes to claims for redundancy pay, Karen is not really directly working on the vessel itself. He work does not require her to board a boat and stay at seas for a period of time. Since her work is administrative in nature, she could not be classified as a maritime worker. Since Karen is not a maritime worker as defined under the Employment Rights Act 1996, she can file for a claim for redundancy within three months from the time of the dismissal due to redundancy. The expiration of the three month period for filing for request for compensation shall effectively block any claims that the complainant may file against the employer for recovery of statutory redundancy payment. The amount of the statutory redundancy payment that Karen can recover from the company will depend on the length of her service to the company, her age and her weekly. According to the Employment Rights Act 1996, the computation for redundancy pay shall be as follows: ½ week’s pay for each year of service rendered to the company if the employee is already 41 years old or above at the time of the dismissal, 1 week’s pay for every year of service if the employee is between the age of 22-40 and ½ weeks pay for every year of service rendered to the company if the employee is below the age of 22 at the time of the dismissal. The fact that Karen was offered another post in another office is does not negate the obligation of the company from paying Karen redundancy payment. Note that the facts of this case specifically stated that the Karen was being relieved of her job because the company wanted to accommodate another employee which used to work in the office that had been closed down. Technically, the position held by Karen is still useful to the company thus, moving her to another post 10 miles from where she used to work constitute constructive dismissal due to redundancy. In the case of Cornwall County Care Ltd v Brightman [1998]7 where the employee was dismissed and then later on offered as job with less favorable term, the employee shall be considered as unfairly dismissed and is entitled to compensation. Question IV Whistleblowers are extended protection under the law. The Public Interest Disclosure Act (PIDA) 1998 which amended the Employment Rights Act of 1996 provides protection against employees who discloses the wrongdoings of their employers and superiors. Section 43B of the PIDA provides for disclosure that qualifies for protection against retribution namely: (1) reporting criminal offences (2) failure to comply with legal mandates (3) miscarriage of justice (4) breach of health and safety measures (5) possible environmental damage and (6) concealment of relevant information. In our hypothetical case, Terry reported possible serious financial irregularities within the company. The fact that he was asked to do unreasonable overtime after that gave rise to the right to file for relief. According to the case of Smith v. Chairman & Councillors of Hayle Town Council [1978]8, the fact that the employee made a confidential disclosure gave rise to an obligation on the part of the employer to protect the employee from possible retribution. Such protection should be accorded to the employee even if what the employee reported is based on a reasonable belief. According to the case of ALM Medical Service v Bladon (2002)9 the disclosure that is based on a reasonable suspicion is covered under the protection of the law. Provided, however, that the fact disclosed by the employee is relevant to the provisions of the PIDA and Employment Rights Act 1996. In the case of Terry, the fact that he has reasonable grounds to believe that serious irregularities have been committed inside the company, he or she is justified in reporting his or her suspicions to the proper authorities. However, where the report or probable irregularities was made based on ulterior motives on the part of the employee or as part of a bullying tactic, such report shall be considered to be in bad faith and should not be considered as under the protection of the law (see John Bowers QC, Jack Mitchell & Jeremy Lewis 1999). In case Terry made a mistake in his report, that does not bar him from taking up an action against unfair labor practice against the company provided that such disclosure is the core of the discriminatory treatment that he suffered at the workplace (see Aspinall v MSI Mech Forge (2002)10). The discriminatory treatment at the workplace does not have to come from the management to make the employers liable for the breach of confidentiality of the information under the PIDA. According to the case of Miklaszewicz v Stolt Offshore (Court of Session) [2002]11 discrimination may be done by the colleagues of the whistleblower. Where the whistleblower was victimized by his or her colleague due to the fact that he previously reported irregularities in the office, the employer who committed the breach of confidentiality may still be help liable for the breach. Note that the detriment towards the employee or the whistleblower does not come directly from the actions of the employer but rather what determines the liability of the employer is the fact that the whistleblower suffered from the negative consequences brought about by the breach of confidentiality. The compensation for damages resulting to the breach shall be counted from the time the detriment occurs and not from the time when the employee reported the irregularities (see Miklaszewicz v Stolt Offshore (Court of Session) [2002]12. Compensation for damages may include wounded feelings, besmirched reputation and action losses (see Miklaszewicz v Stolt Offshore (Court of Session) [2002]13 and Aspinall v MSI Mech Forge (2002)14). Question V The right of the employee to healthy working conditions is clearly outlined in the Employment Rights Act 1996 and in the Health and Safety Act of 1974. The promulgation of the Working Time Regulations 199815 also effectively safeguards the right of the employees against extreme workings hours and conditions. These rights were further strengthened by a number of cases decided by the court upholding the rights of the employees to good health. The case of Bilton v Fastnet Highlands [2003]16, the court ruled that where the health of the employee is endangered at work, that employee should be accorded with the necessary protection by the employer. Note that under the law, the employer is required to monitor the health of the nigh shift worker to prevent work related ailments. In the case of Miranda, the fact that her health condition made it impossible for her to work efficiently at night, the employer is obliged to provide her with better working conditions. Although Miranda originally signed a contract of employment as a night shift worker, the fact that her condition no longer permits her to work in the shift effective abrogate her night shift duties. The refusal of the employer to comply with the request of Miranda to be transferred to a day shift as per the advice of her doctor constitutes a constructive dismissal. In the case of Waltons & Morse v Dorrington [1997]17, the court ruled that where the employer forced a non-smoking employee to work in a smoke-affected environment despite her objections, tantamount to constructive dismissal. However, constructive dismissal does not become automatically unfair. There is a need to look into the surrounding circumstances of the case on this matter. Note that in the case of Pickford v Imperial Chemical Industries PLC [1998]18, where the employer did not fail to remind the employee to take rest in the course of his or her duty, the constructive dismissal of the employee due to his or her deteriorating health condition should not be considered as unfair. In the case of Miranda, the facts of the case failed to mention how the employer tried to safeguard the health of his or her employee. Unlike in the Pickford case where the employer constantly reminded the employee to take a break for her typing job, there was no showing that the employer of Miranda did the same thing. In fact, the employer ignored the request of Miranda to be transferred to a day shift following her spills of dizziness. Since it has become impossible for Miranda to work during the night without endangering herself further, she may have no other options but to give up her job. In this case, she can now demand for compensation from her employer for unfair constructive dismissal. She may also ask for compensation for the damages that she may have suffered while working on the premises of the employer. References Books 1. Burchill, Deakens and Honey (1999) EMPLOYMENT STATUS AND LABOUR FLEXIBILITY: LEGAL AND EMPIRICAL PERSPECTIVES. Bremen (Germany), September 9th to 11th 1999 http://www.kua.uni-bremen.de/news/iwp/deakin.pdf 2. Joanna Chatterton & Anne West New Employment Rights New Law Journal 21 March 2003, 442 3. John Bowers QC, Jack Mitchell & Jeremy Lewis (1999) Whistleblowing: the new law Sweet & Maxwell, London 4. Linda Clarke, Mutuality of Obligations & the Contract of Employment: Carmichael & Another v National Power. Modern Law Review Vol 63, 2000, 757, 763 Laws and Cases 1. ALM Medical Service v Bladon (2002) IRLR 807 2. Aspinall v MSI Mech Forge [2002] EAT/891/01 3. Bilton v Fastnet Highlands [2003] PIQRP 15 4. Cornwall County Care Ltd v Brightman [1998] IRLR 228 5. Employment Rights Act of 1996 6. Employment Rights Act of 2002 7. Kingston v. British Railways Board [1984]ICR 781 8. Miklaszewicz v Stolt Offshore (Court of Session) [2002] IRLR 2002 344 9. North Yorkshire County Council v Fay [1986] ICR 133 10. Nottinghamshire County Council v Bowly [1978] IRLR 252 11. Paternity and Adoption leave Regulations 2002 12. Pickford v Imperial Chemical Industries PLC [1998] IRLR 435 13. Polkey v AE Dayton Services ltd [1987] IRLR 503 HL 14. Smith v. Chairman & Councillors of Hayle Town Council [1978] IRLR 413 15. Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002 16. Stevedoring & Haulage Services ltd. v Fuller [2001] IRLR 627 17. Waltons & Morse v Dorrington [1997] IRLR 488 18. Whitbread plc v. Hall [2001] IRLR 274 19. Working Time Regulations 1998 SI 1998 No 1833 Read More