Discrimination and Conflict in Employment Law - Essay Example

Discrimination and Conflict in Employment Law Question Archie and Carrie are seeking legal advice following their dismissals. Consider any claims they may have. Valdoe & Conway Ltd is a company with its own harassment policy. Archibald and Carrie are working for the company, for approximately 100 weeks. They were both served with a dismissal notice by the company. It is to be seen whether the procedures adapted by the company with respect to their dismissal amounts to unfair dismissal, under the provisions of employment law. The Employment Rights Act 1996 provides a number of rights to employees. Section 94 of this Act provides the right not to be unfairly dismissed by employers. Moreover, Section 98 describes the process for determining if a dismissal is unfair. Finally, Section 98(4) establishes the reasonableness of the employer’s conduct as the standard for fair dismissal (Brodtkorb , 2010, p. 429). As such, an employee has certain statutory rights with regard to the employment. In order to claim these rights, the employee must be under a legal contract of employment. Any period, in which the contract is no longer legal, cannot be relied upon, with regard to continuity of the contract (Emir, 2012, p. 92). The term of employment of employees with a specific employer should be at least a year. This is necessary for establishing eligibility regarding the right against unfair dismissal (NIBusinessInfo). As, Archibald and Carrie have completed more than two years of continuous employment with the same company, they are entitled to protection under the employment law. In addition, a dismissal becomes unfair if the employer has no fair reason for dismissing an employee. If the employer fails to follow the correct process for dismissing an employee, it is an unfair dismissal. If the employee dismisses an employee for an automatically unfair reason, then the dismissal is unfair (nidirect, 2013). In our problem, the company had not followed required procedures, at the time of dismissing Archibald and Carrie. Hence, their dismissals can be considered as unfair. Although, an employer can dismiss an employee for a perfectly valid reason, it is necessary to follow the prescribed procedures exactly. The process should be handled in a fair and accurate manner. Every employer is required to have a written grievance and disciplinary policy. This policy should be followed in disciplinary cases against employees (Compact Law, 2013). Employees who have been dismissed unfairly can approach the employment tribunal. In some cases, the employment tribunal may order reinstatement of the employee. In other cases, the tribunal may direct the employer to pay compensation to the employee (Brodtkorb , 2010, p. 429). In general, the tribunal awards compensation from the employer. Moreover, Section 105 of the Employment Rights Act 1996, states that a dismissal is automatically unfair, if the employees concerned are selected for redundancy for a reason that is inevitably unfair (Barnett & Scrope, 2008, p. 218). In the present problem, Archibald and Carrie were served with dismissal notices without following any disciplinary procedures. The reason for dismissal was not made known to them at the time of being served with the statutory notices. In addition, Archibald was served with a second dismissal notice, which effectively bringing forward his dismissal by a fortnight. Carrie had stated that her dismissal could have been her active membership with the union. This amounts to unfair dismissal, as per the above discussion. Question 2 Bertie feels unjustly treated and is considering resigning. Explain what claims he may be able to bring. Discrimination on the basis of gender takes place when a woman is treated less favourably, due to her pregnancy, or because she is on maternity leave or wants to avail such leave. To prove discrimination, a woman need not compare herself to how a man would be treated. It is sufficient if she shows that ‘but for’ her pregnancy she would not have been treated less favourably or dismissed from service (Maternity Action, 2013). In addition, the Sex discrimination Act 1975 states: Anything done by a person in the course of the employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the Employer’s knowledge or approval (Daniels & Macdonald, 2005, p. 45). Moreover, in Burton and Rhule v De Vere Hotels, it was held that an employer who permitted his employees to be harassed on the basis of their race by third parties, could be made liable (Mullender, 1998, p. 236). Every employee, casual workers, agency workers, freelancers and self – employed women are protected by sex discrimination law from the first day of their employment. Some instances of less favourable treatment, include, selection for redundancy or dismissal on grounds of pregnancy, denial of training or promotion opportunities, reduction of hours or pay, pressure to resign and failure to undertake risk assessment when there are safety and health risks (Maternity Action, 2013). In Bishop v The Cooper Group plc t/a Coopers Thames Ditton, a highly qualified lady applicant was unlawfully rejected, while two male applicants were selected. The organisation in question had not specified the criteria in advance of the decision, and justified its decision after making it. The Tribunal ruled that criteria for appointment should be decided in advance (Mac Donald, 2004, p. 23). As such, Courts accord importance to the justification of the decisions made by the employer. In our problem, the company selected Rikki, who had returned from maternity leave, for promotion. Although, Rikki is not better qualified than Bertie, she was promoted, in order to avoid any discrimination claims from her. As such, the decision of the company in selecting Rikki is not justified. Consequently, Bertie can make an unfairness in employment claim under the provisions of employment law. Question 3 Discuss the prospects of any discrimination claim Sadiq could bring. In our problem, Sadiq’s services with the company changed due to the formation of new contracts by the company. As a Muslim, Sadiq demanded time off on Fridays, so that he could attend prayers at the Mosque. The company offered him another place of service, in order to accommodate his requirements. Sadiq rejected the offer. It is to be seen whether Sadiq’s dismissal comes under constructive dismissal. Employees who face discrimination at work, due to their belief or religion, can make a complaint. Such employees can make a claim to an employment tribunal or raise a grievance with their employer. All the same, under certain circumstances, the employer may be in a position to prove that such action was taken for genuine business, health or safety reasons that are unrelated to the employees’ religion or belief. In such cases, there will be no discrimination (Citizens Advice Bureau, 2013). It is against the law to discriminate against workers, due to their religion or belief. Hence, if the employer introduced a new shift pattern that makes it difficult for an employee due to that person’s religion, then there could be discrimination. For instance, a Muslim worker could claim discrimination, if he were to be compelled to work on Friday afternoons. The employer would have to show that compelling business reasons required the Muslim worker to work on Friday afternoons (Citizens Advice Bureau, 2013). In Cherfi v G4S Security Services Ltd, the claimant a Muslim had been working as a security guard. He was determined to attend prayers during the lunchtime on Fridays. The respondent refused to allow him to leave the premises being guarded by him to attend lunchtime prayers. However, the respondent offered to allow the claimant to work at the weekend, instead of Friday, or to work only from Monday to Thursday. Cherfi claimed that he had been indirectly discriminated on the basis of his religion, as the respondent required him to remain present at the worksite, even during the Friday lunchtime prayers (Cherfi v G4S Security Services Ltd , 2011). He claimed this under Regulation 3 of the Employment Equality (Religion or Belief) Regulations 2003. This was countered by the respondent, who contended that their contract with the customer required them to maintain a specific number of security guards, throughout the eight hour shift. The respondent argued that it was unreasonable to provide a substitute for Cherfi, during the lunchtime. The Tribunal dismissed Cherfi’s claim, as the respondent’s insistence upon his presence at the worksite was a justifiable method of satisfying the operational needs of the business (Cherfi v G4S Security Services Ltd , 2011). Cherfi appealed to the EAT, which rejected it by ruling that the requirement for Cherfi to remain on the premises was crucial to the very survival of the business (Cherfi v G4S Security Services Ltd , 2011). As per the decision in Cherfi v G4S Security Services , Sadiq cannot claim religious discrimination, as the company’s rules do not permit its employees to leave the premises during duty hours. This rule applies to all the employees. Consequently, Sadiq cannot make a claim of religious discrimination. Question 4 Briefly outline what, if any, claims Tom and Ray could bring against the company. For advising Tom in respect of his rights against the company, it is to be examined, whether part – time workers have rights and benefits that are equal to the full – time employees. In Matthews v Kent & Medway Towns Fire Authority, part – time fire fighters claimed the same benefits and parity of working conditions as the full – time fire fighters. The House of Lords upheld their claim. The test applied by their Lordships was whether these two categories of employees had substantially similar work and similar contract (Matthews & Ors v Kent & Medway Towns Fire Authority & Ors, 2006). The Part – time Workers (Prevention of Less Favourable Treatment) Regulations 2000, chiefly provides protection to part – time workers. It is illegal to treat part – time workers less favourably than full – time workers. The exception is when the employer can produce objective justification for such treatment. Regulation 2(3) states that part – time workers can compare themselves with full – time workers under the same type of contract (Nickson, 2004, p. 13). In addition, Regulation 2(4) requires such workers to be employed in similar or the same work, in the context of experience, qualification and skills. In addition, part – time workers are entitled to paid holiday. This is under the provisions of the Working Time Regulations 1998 and the Part – time Workers (Prevention of Less Favourable Treatment) Regulations 2000. In fact the latter regulations mandate that part – time workers should be provided with the same benefits as the full – time workers, in a similar position, on a pro – rata basis (Nickson, 2004, p. 13). In our present problem, Tom was provided with a training programme that was meant for the full – time employees. According to the above discussion, the Prevention of Less Favourable Treatment Regulations require that Part – time workers should be provided with the same benefits that are enjoyed by the full – time workers in a similar position on pro – rata basis. Hence, Tom can claim equal rights and benefits as the full – timer employees. In case of Ray, it is to be examined whether the company’s rejection of his appointment as an accountant amounts to discrimination in employment. In Board of Governors of St Matthias Church v Crizzle, an applicant had applied for a head teacher position. The EAT held the rejection of this applicant to be justified on the facts. The school had specified in the advertisement for that post that the applicant was to be a communicant in the Catholic Church or the Church of England. This was necessary, as the head teacher would have to lead the morning assemblies in prayer (Baker, 2008, p. 311). In our problem, the company had never shortlisted military personnel for the post of accountant. Hence, Ray cannot raise any claims of unfair treatment in employment. References Baker, A., 2008. Proportionality and Employment Discrimination in the UK. Industrial Law Journal, 37(4), pp. 305 – 328. Barnett, D. & Scrope, H., 2008. Employment law handbook. 4 ed. Henry Scrope. Bishop v The Cooper Group plc t/a Coopers Thames Ditton (1992) UKET/60910/92. Brodtkorb , T., 2010. Employee misconduct and UK unfair dismissal law: Does the range of reasonable responses test require reform?. International Journal of Law and Management, 52(6), pp. 429 – 450. Cherfi v G4S Security Services Ltd (2011) UKEAT/0379/10/DM. Citizens Advice Bureau, 2013. Discrimination because of religion or belief. [online] Available at: [Accessed 12 April 2013]. Compact Law, 2013. Unfair Dismissal | Making a claim. [online] Available at: [Accessed 12 April 2013]. Daniels, K. & Macdonald, L. A., 2005. Equality, Diversity and Discrimination: A Student Text. CIPD Publishing. Emir, A., 2012. Selwyns Law of Employment. 17 ed. Oxford University Press. Employment Equality (Religion or Belief) Regulations , 2003. London, UK: HMSO. Employment Rights Act, 1996. London, UK: HMSO. Mac Donald, L. A., 2004. Equality, Diversity and Discrimination: How to Comply with the Law, Promote Best Practice and Achieve a Diverse Workforce. CIPD Publishing. Maternity Action, 2013. Pregnancy discrimination. [online] Available at: [Accessed 12 April 2013]. Matthews & Ors v Kent & Medway Towns Fire Authority & Ors (2006) UKHL 8. Mullender, R., 1998. Racial Harassment, Sexual Harassment, and the Expressive Function of Law. Modern Law Review, 61(2), pp. 236 – 244. NIBusinessInfo, Continuous employment and employee rights. [online] Available at: [Accessed 12 April 2013]. Nickson, S., 2004. legal q&a Part-time workers. Personnel Today, 27 July, p. 1. nidirect, 2013. Unfair dismissal. [online] Available at: [Accessed 11 April 2013]. The Part-time Workers (Prevention of Less Favourable Treatment) Regulations , 2000. London, UK: HMSO. Read More