Employment Law of the United Kingdom - Case Study Example

Employment Law of the United Kingdom Module Module Number Academic Year Seminar Essay Question: Case Studies about Unfair Dismissal Claims Student’s number Word Count = 2000 Raj’s Advice Raj is a hardworking employee with no past cases of insubordination or lateness hanging over him. His lateness by 20 minutes due to the train delay is a valid reason for not reporting to work on time. In addition, Raj’s apology was not only opportune but conceived in good faith and clearly shows the concerns of an employee who does not intend to engage in any form of insubordination. Raj’s summoning to the office of the Managing Director (MD), Glen Jacques and his summary dismissal for alleged insubordination and use of “strong” words against Sara in his refusal of her demand to clean the offices forms sufficient grounds for Raj’s claims for unfair dismissal and wrongful dismissal. The Law The Employment Rights Act 1996 (ERA 1996) provides for the conditions under which the dismissal of an employee can be deemed as unfair. Raj’s summary dismissal is a direct case of unfair dismissal of an employee under the Equality Act 2010 on the grounds of having previously spoken firmly about his labour rights. Raj was dismissed for asserting his employment rights and his refusal of the cleaning work when there were people who could do the work. It would have been fair and reasonable for Raj to be assigned more duties within his job description than force him to carry duties which are at odds with his employment contract. In addition, Raj’s three of service entitles him to unfair dismissal claims in law. This implies the AFSB could only end Raj’s employment contact lawfully if they adhered to a fair process; acted in a reasonable manner and backed their actions with a fair reason. In light of these reasons, Raj would only be dismissed legally Section 98 of the ERA 1996 if he: a) was accused of gross misconduct; b) was incapable of executing the tasks; c) was affected by a genuine redundancy; d) employment would break the law; and e) was a victim of a substantial reason justifying the termination of the employment contract. A substantial reason may be reasonable restructuring within the company or his imprisonment1. Raj’s dismissal does not meet any of these conditions set out in the law. Therefore, the employer’s argument that Raj’s behaviour amounted to a case of gross misconduct has no legal basis. Oftentimes, cases of employee misconduct may involve being intolerant towards a fellow workmate, customer or damaging company assets. Raj’s behaviour constituted none of these. In addition, the employer’s failure to investigate the case before effecting the dismissal was unfair because he violated the mutual trust between them. In light of the breach of law, Raj should take up the issue with an Employment Tribunal. A tribunal would measure the employer’s reasonableness to dismiss Raj on the basis of common criteria for reasonableness2. Legal Procedure Owing to the exclusive role of Employment Tribunals in handling unfair dismissal claims should the appeal mechanism within an organization fail, Raj should seek reprieve from the jury. When seeking justice, he should file the case within three months from the day of terminating the employment contract. This can be done by filling the ET1 form on the Employment Tribunals Service website. It is also important to bring such claims personally, with or without the company of an attorney. However, during the proceedings, legal representation would be more important. Employment Tribunals normally witness Trade unions coming to the aid of the workers to support their claims. The contributions of impartial negotiation and conciliation organizations, particularly to aid reunion efforts of employees who are set for reinstatement are also common3. Despite the fact that employers reserve the right to summarily dismiss their employees for gross misconduct, they are under obligation to carry out thorough investigation on their employee’s alleged misconduct in order to act only when the situation is absolutely necessary. In the recent case of Bowater v Northwest London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal held that by dismissing the nurse-employee for merely saying, while attending to a naked patient, that it had been long since she had a sexual intercourse, the employer had acted unfairly by terminating her contract of employment. The employer charged that the employee’s remarks were lewd and warranted summary dismissal since they constituted gross misconduct. In light of the ruling on Bowater v Northwest London Hospitals NHS Trust, Raj definitely has a strong case of unfair dismissal and wrongful dismissal against his employer. Possible Claims One of the remedies which Raj could be awarded is a reinstatement. This implies an Employment Tribunal would issue an order requiring the employer to give him back his old job and settle his lost wages for the period he was out of the employment. If the employer refuses to absorb Raj back, the tribunal would impose additional costs on top of the Basic Award and Compensatory Award4. This would include £450 per week for a period of between 26-52 weeks or more for the claimant if the need arises. The second option is re-engagement, in which case the employment contract would be restored. However, this option is uncommon because tribunals are normally unwilling to force parties that have parted ways to continue working together. An additional award of £450 per week for between 26-52 weeks or more may be the substitute for re-engagement. Lastly, Raj can lodge claims for compensation for his unfair dismissal. A tribunal would divide it into the Basic Award and the Compensatory Award. The highest figure that Raj can stand to gain in compensation for his unfair dismissal is £87,700. When ordering compensation, Tribunals normally consider whether the claimant tried to settle the dispute through the appeal procedures of the employer as the first option. In this case, the employer denied Raj the right to appeal; neither issued any warnings nor recommended any reasonable disciplinary action against him. In light of these breaches of Raj’s employment rights, the tribunal may grant him the maximum compensation5. Denise Advice Denise’s decision to down his tools due to the employer’s high-handedness and disparaging remarks about his person in front of his colleagues practically ended his employment contract through constructive dismissal. Constructive dismissal occurs when an employer engages in an extremely intolerable behaviour that complicates life for an employee leaving him or her with no option but to call it quits. Owing to involuntary nature of such resignations, the general impact is regarded as a termination of the contract of employment. Denise suffered similar sectarian conditions set the employer. Whereas, Sara’s mode of administration seemed to be applicable across board and may be construed as fair, the employer’s e-mail notification to all employees with Denise’s name being singled out as one of the troublemakers qualifies the employer’s actions as unfair. The employer’s public rebuke of Denise to “leave” if he felt that he could not withstand the new conditions was unfair to him and apparently made life awfully difficult for him, thus prompted his resignation. Denise’s resignation ended his duties as an employee of AFSB, and thrust upon him the right to lodge an application for claims against the organization he was serving for constructive dismissal. Denise’s resignation immediately after the awful incident meets the legal thresholds required to make successful claims before a tribunal and a court of law6. The Law Constructive dismissal is provided for under Section 95(1) c of the Employment Rights Act 1996. The provision empowers an employee to terminate his own contract of employment without necessarily serving notice on the employer if the employers conduct becomes unbearable. Although, conditions which may warrant constructive dismissal are well explained in common law, the main test which courts normally consider is the violation of trust and confidence which is implicitly inherent in all employment contracts. In lieu of the provision, employers can only avoid constructive dismissal claims by refraining from actions or behaviours which are not reasonable or those which are intended to damage or substantially weaken the employee’s trust and confidence. In this case, Glen’s e-mail circular was a calculated move to damage or severely impair the trust and confidence which Denise had during his stint at the organization. In light of this argument, an Employment Tribunal would consider Denise’s case as a constructive dismissal, because the behaviour of the employer suggests they no longer owed the employee the duty to implement all of the terms of the employment contract. As a result of Denise’s constructive dismissal, he has the rights to seek claims for unfair dismissal and wrongful dismissal7. Whereas, people commonly mistake constructive dismissal for unfair handling of an employee at the workplace, standard practices which complicate life for employees such as Sara’s new rules may be considered fair even if they prompt employee resignations8. In this case, it was unfair of the employer to pin-point Denise and circulate his name across the organization. It can be argued that if the employer had not mentioned Denise’s name, his claims under the constructive dismissal rule would be severely impaired by the employer’s argument that the e-mail communication reflected the standard organizational culture, hence was fair9. But this argument is invalid. In the English case of Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183, the claimant sued for his unfair dismissal arising from constructive dismissal, which is today governed by the ERA 199610. Mr Lineham was drinking beer at a joint before entering the business premises owned by his employer. His use of the loo led to his picking by the employer who subjected him to public rebuke before handing to him the last warning in writing. The employee immediately dropped the keys to his office and drove off. The following day he telephoned the employer asking for his dues and promising that the matter would end up at the tribunal chambers. The Court said that the phone call did not amount to a resignation adding that had it been so, the employee would have tendered a letter of resignation to the employer within a reasonable period of time after making the call. In the case, the claimant argued that he was a victim of constructive dismissal, and the Tribunal ruled in his favour citing a grave violation of mutual trust and confidence by the employer, exposing him to public odium. The case of Kwik-Fit (GB) Ltd v Lineham draws several parallels to Denise v AFSB in the sense that the rather confidential meeting between Denise and his employer to discuss the latter’s high-handedness turns into his rebuke in public (through the e-mails mentioning his name being sent to everyone). As such Denise’s case would follow the precedent set in the case of Kwik-Fit, and he stands to claim a maximum of of £25,000 in damages through a tribunal or more by a court of law11. Bibliography Barnard, C., and Merrett, L. (2013), ‘Winners and losers: Edwards and the unfair law of dismissal’ CRL 313 Brodtkorb, T. (2010), ‘Employee misconduct and UK unfair dismissal law’ IJLM 429 de Ruyter, A., and Waring, P. (2004), ‘Propagating the Unfair Dismissal Myth: Comparative Employment Protection Law Developments in Australia, Italy, South Korea and the United Kingdom,’ IERR 13 Ewing, K.D., and Hendy, J. (2012), ‘Unfair dismissal law changes - unfair? 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