Issues Relevant to Employment Law - Assignment Example

The factual scenario raises numerous issues relevant to employment law and I shall address each issue in turn Health & Safety With regard to the working conditions, these clearly raise health and safety issues. The Health & Safety at Work Act 1974 (“the Act”) imposes general obligations on employers to ensure the safety of their employees. Section 3 of the Act requires employers to conduct their undertakings in a manner to ensure that persons other than employees at the workplace are not exposed to risks to their health and safety. Accordingly, as I nearly tripped at the office due to the ill fitting carpet, it is evident that under section 3 of the Act, Ricky Gervais & Co Limited (the Company) owed a duty to ensure my health and safety under section 3. Additionally, the secretaries are working in cramped conditions with chairs not providing adequate support, which points to breach of the Act’s requirements. Section 2(5) requires employers to keep the workplace environment safe and healthy. Section 2(1) requires employers to ensure that systems of work are safe and without risk to health. Section 2(7) requires employers to establish a safety committee if requested and section 2(3) obliges employers to prepare a written and up to date safety policy with arrangements for carrying out the policy. Accordingly, if we apply this to the current scenario, the working conditions clearly raise health and safety issues. Moreover, if the Company is found to be in breach of the Act’s requirements, any breach of any of the provisions of the Act or its regulations will constitute an offence and the enforcement of the Act’s provisions rests with the Health and Safety Executive, which has powers to issue enforcement notices to require improvement of existing work practices within a specified period of time, or to prohibit further dangerous activities. 2. Employer liability regarding references With regard to the revelation regarding the reference from my previous employer, the general common law position is that an employer does not have a general obligation to provide an employee reference1. However, if an employer provides a reference, a duty of care is owed by the previous employer to the prospective employer not to mislead as was established in the case of Bartholomew v London Borough of Hackney.2 Moreover, the Court of Appeal asserted that a reference had to in substance true, accurate and fair and must not give a misleading impression3. Accordingly, in the current scenario, my previous employer owed the company a duty of care in providing the reference and the impression given appears to prima facie be misleading and in breach of the duty of care. Additionally, in the case of Spring v Guardian Assurance plc4it was also determined that previous employers owe the subject of the reference a duty of care as well as the potential employer it is given to. The House of Lords asserted that an employer who provides a reference concerning a former employee to a prospective employer owes a duty of care to the employee regarding the preparation of a reference and may be liable to the subject of the reference for economic loss in the event of negligent misstatement5. Accordingly, the previous employer will most likely be liable for negligent misstatement, however in light of the fact that the job was offered and the position was taken up, no actual loss has been suffered as required to make a successful claim. 3. Ensuring adequate breaks are provided to employees; The current factual scenario indicates that the secretaries appear to be working for long periods of time, which further raises potential issues regarding adequate rest breaks. The Working Time Regulations (the Regulations) impose requirements that employers must comply with in respect of employee working hours and breaks to be provided. In particular, section 6 of the Regulations deals with provisions relating to rest breaks and the general provision is that workers are entitled to 11 uninterrupted hours of rest daily and a minimum of 1 day off in the week. With regard to daily rest breaks, workers and young workers are entitled to 20 and 30 minutes rest period respectively if they are required to work for a continuous shift of 6 hours. Accordingly, the Company must ensure this to comply with the Regulations. 4. Injury at work and vicarious liability With regard to Geoff’s injury, the injury was caused by another employee playing a practical joke in the workplace with a pair of scissors. This clearly indicates negligence and raises issues in relation to a potential claim against the Company for negligence under the principle of vicarious liability. The factual circumstances clearly point to negligence, which caused Geoff’s injury. Additionally, it appears that company director Mr Gervais was aware of Peters’ practical jokes and that Peters had done this on a previous occasion. However, not every misfeasance will render an employer vicariously liable and the act must be in the course of employment6. Accordingly, in order for the company to be vicariously liable, the following criteria will have to be satisfied: 1) Peters was an employee of the Company; 2) The wrongful act was undertaken in the course of employment; and 3) No defences of contributory negligence or voluntary assumption of risk are available7. With regard to the current scenario, there is no issue that Peters is an employee of the Company and the relevant issue is whether the Company is vicariously liable for his conduct., The limitation is that the employee must be acting in the course of employment as opposed to “a frolic of his own”8. Moreover, it is an important principle of vicarious liability that the employer is liable when the employee is performing their duties even if performing them badly; however not when an employee is doing something completely outside the scope of their employment contract9. For example, in the case of Limpus v London General Omnibus Co10 bus drivers were prohibited from racing rival company drivers however the employer was still held liable for a race that caused an accident. It was held that the employee was still doing what they were employed to do, but poorly. However, as determined in the case of General Engineering Services v Kingston & Andrew Corporation11 it was acknowledged that there comes a point when an employee can be performing so badly that it can be said that they are no longer acting in the course of employment. In Rose v Plenty12, a milkman was expressly forbidden from allowing children on the float to assist in delivering milk. He nonetheless employed a 13 year old to help who was injured while on the float. It was held that the employer was liable. The employee was doing what he was supposed to be doing, but incorrectly. Accordingly, if we apply this to the current scenario, the accident occurred during work hours in the workplace in the open plan office. However, it is arguable that Peters’ conduct in playing the practical joke could fall within the General Engineering Services’ case of being something so far removed from Peters’ duties to be taken outside the course of employment, in which case Peters will be liable to Geoff for negligence. Alternatively, if Peters’ conduct falls within the course of employment, then the Company will be vicariously liable to Geoff. There are two main defences for employers in vicarious liability cases; namely contributory negligence and voluntary assumption of risk13. For the present purposes, voluntary assumption of risk will not be applicable. Additionally, it is important to note that Peters’ conduct and the fact that he has been warned about such behaviour previously may also raise employee conduct issues, which may entitle the Company to fairly dismiss Peters in the circumstances. 5. Disability discrimination Geoff’s accident has left him having to leave the company and take a less paid job, which could potentially issues of disability discrimination under the Disability Discrimination Act 1995 (DDA). However, in order to rely on the DDA provisions for bringing a discrimination claim, Geoff of the DDA defines this as “a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day-to-day activities.” The case of Goodwin v The Patent Office14 provided detailed guidance section 1 of the DDA. The first consideration is whether “the application has an impairment which is either mental or physical15”. As Geoff has lost an eye, this will constitute physical impairment for the purpose of the DDA definition. Secondly, only medically recognised illnesses will fall within the DDA and this condition satisfies the criteria under the World Health Organisation’s International Classification of Diseases16. Accordingly, Geoff’s condition will come within the definition of a disability under the DDA and the next consideration is whether the impairment will affected his ability to carry out normal day to day activities. The case of Greenwood v British Airways17 determined that this necessarily involved a factual investigation18”. With regard to the current scenario, Geoff’s job is impacted as his job involved looking at the computer screen all day. However, on grounds of the impairment to his ability to carry out the job full time he is now having to take a less well paid job elsewhere. The next issue is whether the adverse effect is substantial19. The Goodwin case highlighted that the definition of substantial means “more than minor or trivial20” and is essentially a question of fact in each case. Relevant considerations include how long it takes to complete tasks and the manner in which tasks are undertaken.21 With regard to Geoff; he has to take a less well paid job in order to support his wife and children, which further supports a claim that the adverse effect of his impairment is substantial. The final consideration is whether the adverse effect is long-term. Schedule 1(2)(1) of the DDA states that an effect is long term if “(a) it has lasted at least 12 months; (b) the period for which it lasts is likely to be at least 12 months; or (c) it is likely to last for the rest of the life of the person affected”. Geoff has lost an eye and as such, this will likely satisfy the long-term requirement. As such, section 3A(1) of the DDA states that an employer discriminates against an employee if “for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and he cannot show that the treatment in question is justified”. The DDA in fact goes further and states under section 3A (4) that treatment cannot be justified if it amounts to direct discrimination. With regard to Geoff’s position, in light of his disability, Section 6 of the DDA imposes a positive duty on the Company to make reasonable adjustments to facilitate Geoff’s continued employment and access to performance related bonuses and salary entitlements. The House of Lords in the case of Archibald v Fife Council22 described this as a “duty to positively discriminate23”. Failure to do so will point towards unfair dismissal24. Moreover, in the Archibald case it was held that transferring an employee from a post they could no longer do to one they could would constitute a reasonable adjustment under the DDA. Section 18B of the DDA provides further examples of reasonable adjustments. Furthermore, the reasoning of the decision in Mid Staffs General Hospitals NHS Trusts v Cambridge 25highlights the fact that as the Company is aware of Geoff’s disability, they will have a positive duty to obtain a proper assessment of his disability, how it affects his ability to work and the changes that were required to be implemented throughout the workplace to minimise the effects26. Section 3A(3) of the DDA asserts that discriminatory treatment is only justified “if, but only if, the reason for it is both material to the circumstances of the particular case and substantial”. However the case of Collins v Theatre Board 27emphasises that an employer cannot use the same factors to justify failure to make reasonable adjustments and to determine whether any adjustments made are reasonable28. Factors that may constitute justification include the extent to which it is practicable for the Company to take the steps, the costs which would be incurred, the extent of resources and the availability of taking the necessary steps29. Accordingly, if the company have made the decision to let go of Geoff without accounting for or assessing his disability and the possibility of adjustments to accommodate his condition including the workability of the treatment requirements, will further strengthen Geoff’s position in a claim for disability discrimination against them. BIBLIOGRAPHY Pitt, Gwyneth., (2007). Employment Law. 6th Edition Sweet & Maxwell. Honeyball & Bowers (2006). Textbook on Labour Law. 9th Edition Oxford University Press. Painter and Holmes., (2006). Cases and Materials on Employment Law. 6th Edition Oxford University Press. Selwyn’s Law of Employment (2006). 14th Edition Oxford University Publishing. Health & Safety At Work Act 1974 Disability Discrimination Act 1995 Employment Rights Act 1996 Working Time Regulations 1998 www.opsi.gov.uk Read More