Employment and Discrimination Law - Case Study Example

Case Facts Anthony is an analyst in Brown and Harman Ltd., a medium sized investment company. Anthony needs one week off in a month for his cancertreatment which his company is not able to give because as an analyst, his expertise is required on a daily basis. He therefore, faces threat of dismissal. Issue Whether Anthony is entitled to the sick leave on a regular basis and ill health retirement or the organization would be justified in dismissing him from the job. Advice As an advisor, I would assure that Andy has genuine grievance and serious problems with the management and that ACAS (Advisory, Conciliation and Arbitration Services) would be the right body to represent his case. ACAS is the organization that promotes and helps build better workplace relationships and practices. ACAS ‘promote best practice in the workplace through easily accessible advice and services’ (ACAS website). They work through a network of national and regional advisors who offer free advice and services. They also provide organizations to improve their employment practices through their training modules. ACAS also helps the employees to resolve their workplace conflicts and offers them various services like mediation, conciliation and arbitration with their employers so that the employee gets the best services. There are mainly two areas where Andy requires advice: whether he has right to take leave for his treatment on a regular basis; and threat of dismissal. If the company has not provided any sick pay scheme under the employment contract, Anthony under employment law Act 2002 is entitled to statutory sick pay for up to 28 weeks, whether taken at a stretch or intermittently. As per the medical diagnosis, he may also be eligible for ill health retirement policy under In First West Yorkshire Limited t/a First Leeds v Haigh UKEAT/0246/07, the driving licence of Mr. Haigh, a bus driver, was suspended for 12 months after suffered stroke in June 2005. He suffered another stroke in October of the same year. Although under his employment contract, he was entitled for ill health retirement pension, Haigh was given the option for dismissal or extended sick pay and later retired with no ill health pension. He declined the offer and was subsequently dismissed. Haigh took the case to Employment appeal tribunal. EAT found that the company wanted to save the cost of ill health pension. Anthony’s case is also a sensitive matter for B & H, especially in the contemporary times of tough economic conditions. Anthony’s services as analyst is important for the organization and his inability to attend office regularly will have serious consequences for the company. If the company must replace Anthony with another expert or analyst, it needs to give due notice to Anthony and he is entitled to his wages for the duration of the notice or get payment in lieu of notice. The company must look for alternatives that would uphold Anthony’s dignity to work and payment during his traumatic days of treatment. Anthony is entitled to full pay sick leave of 28 weeks and equal number of half pay sick leave. Despite the recessive trend, the company must make provisions for Anthony and even consider ill health retirement pension, instead of dismissal. Case 2 Facts Diana is an experienced and qualified solicitor in family law. She applies for a family law post in a leading law firm and full fills all the essential criteria for it. During the interview, she informs them that she is pregnant and may require maternity leave of about six months. She is later informed that she has not been selected. Issue Diana feels that she did not get the job because she had informed them during the interview that she would be requiring maternity leave of minimum six months as she is in her early pregnancy days. Hence the issue is whether Diana has been refused appointment to the post due to her pregnancy and if she has legitimate case under unlawful discrimination. Advice Diana has applied in a prestigious law firm for a post where other, equally qualified candidates might also have applied. In 2007, the Sex Discrimination Act, 1975 was amended to include and specify ‘Discrimination on the ground of Pregnancy or Maternity Leave’. In the amended version SDA (5)(1)(3b) states that; 3B Discrimination on the ground of pregnancy or maternity: goods, facilities or services(c) (1) In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if— (a) on the ground of the woman’s pregnancy he treats her less favourably than he would treat her had she not become pregnant (SDA, 2007) The Pregnancy Discrimination Act amended under Title VII of the Civil Rights Act of 1964 also confirms that ‘An employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition or because of the prejudices of co-workers, clients, or customers’. Had Diana been the only applicant for the post, she would have been legitimate in her claim for discrimination on the ground of pregnancy or maternity leave. If Diana wants to avail the claim under this clause, she would need to gather sufficient information that she was the sole applicant who had satisfied all the eligibility criteria for the family law in McCains, a prestigious law firm, she would be able to make the claim for the post under this act. But in the present case, the company is entitled to choose a candidate that would best fit their criteria of selection and may look for extra factors that would add value to the post. As per the company’s claims, it had other applicants who satisfied the eligibility criteria and therefore, the company had been within its rights to choose appropriate candidate for the said post. Hence, Diana has no legitimate legal case against the company unless, she has evidence that other candidates do not have the essential qualifications as prescribed under the post and she has been deliberately disqualified because of her pregnancy. Case 3 Facts Fareeda is a Muslim athlete who applies for the post of athletes’ trainer in a sports club. She has been turned down because she refuses to wear runners’ club uniform which consists of short top and skimpy skirt as it violates her religious dress code. Issue Whether Fareeda has genuine grievance under Employment Equality (Religion or Belief) regulations 2003. Advice Fareeda has genuine case under the said Act under indirect discrimination and there are primarily three factors that strongly support her case; 1. The sports club, where Fareeda has applied, would like to appoint her if she accepts their dress code for the athletes. 2. Fareeda is a national long distance runner who has won medals for the country. 3. Female athletes from other Muslim countries have participated and won the Olympics, wearing modest dress kit. The sports club believes that their dress code promotes improved performance and the same time, attracts young people to join the club. Under the ‘Employment Equality (religion or belief) regulation, 2003, the club cannot force any person to act in a manner that may violate his or her religious beliefs. Regulation (6)(1) State that It is unlawful for an employer, in relation to employment by him at an establishment in Great Britain, to discriminate against a person -  (a) in the arrangements he makes for the purpose of determining to whom he should offer employment; (b) in the terms on which he offers that person employment; or (c) by refusing to offer, or deliberately not offering, him employment. (opsi.gov.uk) In Noah v Sarah Desrosiers, t/a Wedge, ET 2201867/2007, a Muslim hairdresser had been refused employment because of her headscarf. She filed the case under indirect discrimination on the grounds of religion beliefs as Desrosiers, her employer wanted her to remove the scarf during the working hours. Noah won her claim as the court ruled that employer’s claim was ‘not a proportionate means of achieving a legitimate aim’ (berg.co.uk). In the present case also, the Club cannot have any legitimate aim to its claim that its dress code kit would improve athletes’ performance or would attract young people to the club. Hence, it can be concluded that Fareeda has a strong case, as even with her modest dress code, she has been a national athlete and won medals for her country. The claim of the club does not support the aims of its dress code kit as Fareeda’s performance outcome and her laurels prove. Case 4 Facts Shirley has been working for 6 months in the Hendon campus of Barnet University. She wants to work from home as she would like to keep an eye on her elderly father, who lives with her had a stroke. Issue The university has refused her request. Advice Under section 80(F) Employment Rights Act 1996 (ERA) (as amended by Employment Act 2002), as per the legal clause for an employee to request for flexible work arrangement, the employee must qualify under the following conditions; - The employee must have worked for 26 weeks - is responsible for a child as a parent/guardian/ special guardian/ foster parent/ private foster carer or as a holder of a residence order - is the spouse, partner or civil partner of one of these - is applying to care for a child - or is a carer who cares or expects to be caring, for a spouse, a partner, a civil partner, a relative or who lives at the same address as the person being cared for. Shirley’s father lives with her. Her father had recently had a serious stroke and needs to be looked after. Shirley wants to take care of her father and keep an eye on him by availing the option of flexible work arrangement. It is true that Shirley’s needs are genuine but under the constitutional framework of employment guidelines and alternate arrangement of flexible working condition, Shirley is not eligible to apply for working from home. So far as Shirley is concerned, none of the above reasons apply to her to apply for the changeover to the part time work arrangement under ERA. She has no legal right to request for flexible working. Shirley has been employed only for 24 weeks and therefore, she does not satisfy the fundamental condition of minimum employment days. But in two weeks’ time, she would be eligible to apply for the same as she would have fulfilled the minimum condition of twenty six weeks of employment under ERA. On the other hand, if Shirley can still claim for flexible work arrangement under SDA (Sex Discrimination Act). SDA covers the areas that are beyond the scope of Employment Rights Act. SDA 1975 states that; ‘An Act to render unlawful certain kinds of sex discrimination and discrimination on the ground of marriage, and establish a Commission with the function of working towards the elimination of such discrimination and promoting equality of opportunity between men and women generally; and for related purposes (SDA, 1975). SDA, part II (6)(2)(a) further says; It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her- (a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or (b) by dismissing her, or subjecting her to any other detriment. SDA has great advantage over ERA as it has no eligibility condition of minimum service period or the frequency of applying for flexible working arrangement. If Shirley applies under this Act, she would stand a fair chance of granting flexible working arrangement from the University. (words 1957) Reference ACAS. Aims and Objectives. Available from: [accessed 18 April, 2009]. ACAS. Representation at Work. Available from: [accessed 18 April, 2009]. Employment Equality (religion or belief) regulation, 2003. Available from: [accessed 18 April, 2009]. Employment Rights Act 1996. Available from: [accessed 18 April, 2009]. Grievance Procedure. Available from: [accessed 18 April, 2009]. First West Yorkshire Limited t/a First Leeds v Haigh UKEAT/0246/07. Available from: [accessed 18 April, 2009]. Noah v Sarah Desrosiers, t/a Wedge, ET 2201867/2007. Available from: [accessed 18 April, 2009]. Pregnancy Discrimination Act. Available from: [accessed 18 April, 2009]. Sex Discrimination Act, 1975. Available from: [accessed 19 April, 2009]. Read More