Analysis of Employment Law Cases - Case Study Example

EMAIL ONE James should not be dismissed because although he was being playful at the work place, which is gross misconduct because he is supposed to be working he should first get an informal chat from the head of department , this will inform him that his behavior was not appropriate and it led to another employee getting into an accident at work. If he does not regard to the informal warning a letter should be letter to him as a first warning followed by a second warning and if he continues with the gross misconduct then at these point dismissal is allowed. Because the law accords the right to be heard before dismissal in the case of Malloch v Aberdeen Corp (No 1) [1971] 1 WLR 1578. This was illustrated in the case of Sutton & Gates Ltd v Boxall (1978) ICR 176. Because at these point he has failed to exercise his capability fully or the talents that he possess. This has been provided for by the Employment Rights Act 1996, which confers the employees not unfairly dismissed, and gives them a fair hearing to ensure that they are reinstated in case they were unfairly dismissed of re-engaged. James cannot be held liable completely for the accident that occurred in the work place although he was messing around in that it is the companies or the employer’s obligation to ensure that the work place is safe for its employees. The employer did not take this precaution, was equally at fault because he was negligent, and did not take care of his employees. The Health and Safety at Work Act of 1974 provides that the employer to ensure that has a duty the work place is safe, protecting the persons working there and the environs. For instance in the case of James there were many stuffed boxes, cabinets and files laying all around which would have made anyone fall at any time. Although the act provides for this it equally gives the employees to take of themselves to avoid unnecessary accidents by making the right moves. Juliana broke her ribs because she feel down on the boxes and the duty of the employer is to ensure that the employees are safe from any sought of harm. The state has an obligation to enforce the safety and health regulation any person who goes against suffer might suffer a criminal prosecution under section 33. This section creates offences including breach of contract or duty. This was as the case of Davis v health and safety Executive (2002) EWCA Crim 2949. This means that the company should be held liable for breaching duty of ensuring that the employee’s safety comes first. In the cases, where the employee is injured at the work place the presumption of innocent until proven guilty is not accorded to the defendants, because the law believes that the employer owes the employee a duty of care to the employee. When he undertakes to put his health in danger he goes against these rules, the only exception of these rules is under section 40 where the employer shows that a reasonable person could not foresee the harm. In my view James should not be dismissed until there has been warned about his behavior at the work place because these is the first time he has done so. Secondly, it was the duty of the employer to take reasonable care but when the boxes were kept in the of any reasonable man can see that they could have caused an accident at one particular point. EMAIL TWO According to The Work Time Regulation Act of 1998, it protects the workers from being overworked or from excessive work during the times; they are not allowed to be working but spending time with their family members. The provision includes not paid annual leave that is mandatory and payment for overtime, break rests are provided. Maria has not been working according to the contract of employment that they reached with the employee because most of the time she is out of his work place. The worker if he or she is not comfortable with the working terms he she should inform the employee in writing what he or she is comfortable is. Maria opted to ignore his work, which was not the right approach, and it showed that she did not respect his employer. When a person is an employee of a particular person, he or she has an obligation to the best of their knowledge and skill. When an employee goes the employer, he asks for work and the employer has a duty to offer the work, if the person is qualified. This work should be done by the person him or herself without delegating it to someone else. These was illustrated in the case of Express and Echo Publications v Tanton 1999, where it was held that the employee has to do the work personally and he or she should not delegate the work to someone. The employer can choose to dismiss her because of her conduct because she is required to be at work five days a week but she barely shows up and these shows that she is not committed to her work. I would also advise the director to look into her problems before making any rush decisions because she may be experiencing some family difficulties and she is afraid to tell her superiors for reason of being discriminated after they know what she is going through. These should be done by confronting her face to face and chat with her in order to know what her problem is under the Equality Act 2010. If she does no correct her mistakes, a warning should be given to her which should be written and if these is heeded, a second warning should be issued followed by a warning a demotion and if she does not mind all these then she should be dismissed. The case of Lyons v Mitie Security ltd (2010)IRLR 288 the lord justice held that an employee who leaves his job to take a holiday or miss work without giving notice to the employer may lose their annual leave payment. Alternatively if she wants to work three a week she should bring forward a letter saying so, and it should be accompanied with a cut in her wages, reason being she cannot be doing less work and still get the same wages as the person who sits through work all day. Section 5 of the Work Time Regulation Act sets out an exception as to the maximum working time. Where 5(1) stipulates that the time limit specified by the employee can be scrapped of as long as the worker has agreed with the employer to do so in writing. This is agreed upon if the employer complies with the requirements of sec 4 (1).Maria is not acting rightfully and she is breaching the employment contract as she has not written to the managing director on what her working schedule should be. In my view Maria has an obligation to inform the director that she is not comfortable with the working hours and by so doing the employer will know to reschedule her working days to make them more appropriate for the company and herself. EMAIL THREE Employing or contracting new employees will raise some issues for instance will they be independent contracts or will they be employees. Secondly what will happen to the three security officers whose performance is not appropriate or not up to the employment standards. When it comes to employment contract the employee has to know the various principles that are accompanied with these for example an employee is a person who has a contract of service while an independent contract has a contract for services. The Employment Relations Act of 2000 section 6 defines an employee as a person or any person of any age who is employed by an employer to conduct any sort of work under a contract of service. An independent contractor does not enjoy the benefits that are enjoyed by the employee including monthly wages, job security, the employer the duty to ensure that all the tax returns of the employee are paid unlike a contractor who has to do all this on their own. There is also freedom to where one wants to work unlike an employee whose work is stipulated and does it under supervision. Therefore, before hiring the officers the director should put into consideration these issues. The case of Bryson v Three foot six Ltd (2005) the conduct tried to distinguish between an independent contractor and an employee by conducting the control test. Control during the performance of work is another factor that differentiates between the independent contractor and employee because an employee is controlled on a daily basis by the employee but the contractor it is on during the time of the contract and the control is not as high as that of the employee. Te courts have used various test to determine the control the employer has over the employee. In a mutual obligation test, it was held that the contractor had no obligation to do the work offered as was in the case of Carmichael v National Power (2000). The issue of liability may also arise where they question of who will be liable for any thing that happens during their working time as either employees or contractors. In case of an employee, the employer will be liable for any misconduct or anything that the employee does during their working period. Therefore, before making or creating an employment contract the managing director should look at these issues. The Independent Contracts Act of 2006 protects the independent contracts from employers who might want to take away their legal rights or even steel from them. The other issue that the managing director should look at is the issue involving three security officers they think are not taking care of their work to the best of their knowledge and skill. Before thinking of dismissing them or maybe demoting them to a lower position, they should get some fair wrong to make them aware that they are not taking care of their work to the best of their capability. If they go ahead to dismiss then a suit may be brought against the company for wrongful dismissal. This may end up tarnishing the name of the company. Therefore, the company should make an effort to ensure that both sides of the case are catered for and not be disappointed by the employees or the security officers before thinking the matters through. In my view the three non-performing officers should be demoted, and place in a lesser position. Instead of sub -contracting the company should contract the officers for their service and these will make them employees. This means that they will have control over them and they will be able to carry out their work diligently. EMAIL FOUR The working time regulation Act of 1998 section 4 provides for a maximum weekly time as 48 hours and they should not exceed which is inclusive of overtime that is 7 days a week. In a case study the employees do not have to work on Sunday and these means that their working time ha to be covered during the week. An employer has an obligation to ensure that all his employees are at good condition to work. The stress of the work should not make them incapacitated at one particular point of their life, from being overworked as was held in the case of McCartney v Oversley House Management (2006) and provided for under the Safety and health workers act. Rest of the employee is guaranteed by the act under section 10 where by a n employee should be allowed at least eleven hours of rest in 24 hours while the young person should be allowed at least twelve hours. The employees should at least be allowed a one-hour lunch break to enable them to relax and continue with the next shift. This is to avoid stress involved or around the working environment, the employee is working on. The Employment Act 1996 under section 50 to 70 provides for the right of the employees to have an off time during work and a holiday for the employees and their family. The employers have an obligation to ensure that their employee’s health and safety comes first and these means that they should always ensure that their health comes first. The employer should always give his the employees notice the working schedule changes and they should be consulted first before the employer changes the time to ensure that they are comfortable with the changes as many may find it because it may put a lot of pressure for them. The changes in the call centre are not fair because the resting time during lunch is too short and it will not be suitable for the health of the employees. There are certain exceptions for break rest when it comes to shift workers they are referred as workers who are engaged in activities that involve periods of work that are split over the day and sometimes evening that others succeed the others at the same working station. In these cases of work, there is a continuity of production or service. These worked are on accorded compensatory rest wherever the company finds possible. In the case of Hughes v Corpos of commissioner Management Ltd (2012) decided that whether a worker is a special case or a regular worker that all their activities have to be considered. The working regulations were brought by to ensure that the employers do not take advantage of the workers and overwork them. By so doing they will avoid many law suits from being brought against them by the employees. In my view although they are special case workers they should be entitled to rest and if it’s not possible they should be compensated for not getting their annual breaks as other employees. EMAIL FIVE Redundancy the process by which the employers makes or selects people to leave their jobs because they are no longer needed to work there. This is done by looking at various issues and ensuring that when the employees leave they will have a place or security to stand on their own feet after leaving their jobs that they works for so long. An exercise carried out to a group of employees in a company. This occurs when there is a slowdown in the company and the services of these employees are no longer needed. There are procedures that the employers have before carrying out the redundancy exercise. The Redundancy Payments Acts of 1979 provides that the employers should provide for a minimum payment to those employees they are laying off. This provision does not apply to all employees only those who have worked in the company for so long. An employee may be given time off payment to hold them up as they look for a job after the redundancy process is over. This is provided for under section 7 of The Redundancy Payments Act. There are rules that are laid down before a redundancy is carried out, first he must give your employees a two weeks’ notice and give some redundancy payments to those employees. These provision does not mean that all the employees selected are made redundant there are other alternatives like getting the employees alternative jobs. An alternative employment means that one will have job security and if an employee refuses the alternative work they the employer is entitled to hold back their redundancy payment. The acceptance of the new job or re-engagement means that you have accepted the job but in this case, the terms of employment will not be different from the previous employment. The alternative work should come in writing and the employee is entitled to full information about the job. The redundancy procedure should be fair to the employees and that the procedure should be followed to the later. This is to avoid claims of unfair dismissal from being brought against the company. Grounds like pregnancy, joining a trade union or a religious belief that the employer does not agree with. The Employment Equality Legislation prohibits the employers from making employees redundant based on nine grounds. They include family status, age, disability, sexual orientation, civil status, gender, or membership of the traveler community and race illustrated in the case of Clarke v Eley Kynoch Ltd. In the case of the company, they are making 25 employees redundant and this is a requirement by the law to ensure that before a decision is finalized the employer should decide on the number of employees to be made redundant. In this case, it is a collective redundancy because there are more than 20 employees and it is the duty of the employer to consult Appropriate Representatives. They are representatives that are elected by the employees or representative of an independent trade union if the employees have a described trade union. If an employee does not have a trade union then the employee elected as a representative is consulted. The consultation should last at least 30 days before the first dismissal take place. The employers are required to provide particular information to the representatives in writing sec 188(4) of TULRCA specify that, the reason for the redundancy. The method to be used for selecting employees to be dismissed as was referred to as in the case of King and others v Eaton (1995). The proposed method used to be carried when calculating the redundancy payments. The law requires that the consultation should be genuine and not a sham this was illustrated in the case of Middlesbrough BC v T&G and Unison. EAT/26/00). The length of employment should be put into consideration, the attendance records as well as the disciplinary records, working experience of an individual and performance record and lastly the skills, experience and competence. Therefore, before the employee makes the decision to dismiss his or her employers he should ensure that he gives them notice and find them a representative. These will ensure that they acquire fair hearings and they will get their payments as required for by the law Eversheds v DeBelin [2011] In my view, before the company dismisses it employees it should ensure that all the rule and regulation placed forward by the statutes are followed to the latter. This will ensure that the company or the firm does not get themselves in lawsuits that they are going to pay millions of money for wrongful dismissal. References Daniels, K (2012) Employment Law: An Introduction for HR and Business Students, 3rd edition, London: CIPD Publishing Pitt, G (2011) Employment Law, 8th edition, Sweet and Maxwell Taylor, S and Emir, A (2009) Employment Law: An Introduction, 2nd edition, OUP Oxford Willey, B (2009) Employment Law in Context: An Introduction for HR Professionals, 3rd edition, Longman Nairns,J (2011) Employment law for business Students, Longman DALTON, A. J. P. (1998). Safety, health, and environmental hazards at the workplace. London, Cassell Maximum Weekly Working hours, 2013. Working Hours : (online)Available at: Health and Safety Executive.2012. The Working Time Regulations:(online) Available at: Citizen information. 2012. Health and Safety at Work. (online) Available at: Redundancies, dismissals and disciplinaries 2013. (Online) Available at: Health and Safety Executive (2009): A Guide to Safety and Health Regulation in Great Britain. 4th edition. (online) Available at,< http://www.hse.gov.uk/pubns/web42.pdf> The Redundancy Payments Act 1979 The Employment Act 1996 Employment Rights Act 1996 Employment Protection (Consolidation) Act 1978 Equality Act 2010 The working time regulation Act of 1998 Independent Contracts Act of 2006 The Employment Relations Act of 2000 Health and Safety at Work Act of 1974 Bryson v Three foot six Ltd (2005) Hughes v Corpos of commissioner Management Ltd 2012 Sutton & Gates Ltd v Boxall 1978 ICR 176 Middlesbrough BC v T&G and Unison. EAT/26/00). Lyons v Mitie Security ltd (2010)IRLR 288 Express and Echo Publications v Tanton 1999 Davis v health and safety Executive (2002) EWCA Crim 2949 King and others v Eaton (1995) Carmichael v National Power (2000) McCartney v Oversley House Management (2006) Eversheds v DeBelin [2011] Clarke v Eley Kynoch Ltd Malloch v Aberdeen Corp (No 1) [1971] 1 WLR 1578. Read More