Employment Law - Assignment Example

Employment Law The first section of the assignment will assess and advise Abe as to the claim he may reasonably try to bring against the company for his dismissal. Abe was suspected of defrauding the company and dismissed after a hearing. The dismissal was conducted in accordance to the terms in the contract, including providing Abe the right of appeal before the dismissal. However, Abe’s dismissal might not have been fair considering it was subsequently discovered that Bruce was the thief. The relevant law applicable to this scenario is the law on unfair dismissal1. In order to determine the unfairness of the dismissal, it is essential to establish the reason for the dismissal. It was held in Adams v Derby City Council2 [1986] that the burden of proving the dismissal was fair lies on the employer. Where the employer pleads a fair reason for the dismissal, then he must show that the reason was indeed fair. After establishing the reason to be fair, it is then prudent to show that the reason was reasonable. It is important to show that the fair reason for the dismissal was sufficient to be considered reasonable3. Some fair reasons which an employer can dismiss an employee include redundancy, capability, retirement, conduct or some other substantial reason4. With regard to conduct, this entails the employee’s conduct including dishonesty. John Lewis v Coyne5 [2001] found that suspicion of a crime is sufficient reason and the employer only needs to show he believed the employee to be guilty; however, an investigation is still required6. The reasonableness of the fair reason are often associated with the procedure used in dismissing the employee. In Tower Hamlets Health Authority v Anthony7 [1989] it was held that the employee must be given warnings for the dismissal to be judicious. Additionally, it was held in Coxon v Rank Xerox (UK) Ltd8 [2003] that the employee must be accorded the details of allegations against him for the procedure to be reasonable. The decision in West Midlands Co-operative Society Ltd v Tipton9 [1986] was that an appeal process is required to make the dismissal process reasonable. In respect to Abes’ case, the reason for the dismissal was dishonesty, and this was communicated in detail to Abe. In light of the decision in John Lewis v Coyne10 the employer was justified to give a dismissal notice to Abe. The procedure followed in the dismissal of the employee was also reasonable within the required standards as he was given a fair hearing and a further right of appeal which he used11. Although the reason for the dismissal, as well as the procedures followed, were just and reasonable, it is worth noting that the culpability of the employee was cleared when Bruce was discovered to be the actual thief. Because the employee was wrongly implicated in the theft, which was the reason for the dismissal, although justified, was not fair and; therefore, Abe can successfully bring a claim for unjust dismissal against the company12. 2 This section of the assignment will advise Donald and Esme on their dismissal and the claims they may have in law. Both individuals have been given dismissal letters and the length of the notice in the letters is within the four week period stipulated in their contracts. However, Donald received another letter bringing forward his post, but still maintaining the notice. Esme on the other hand, believes the reason for his dismissal is based on his union activities. The issues here are whether the second notice given to Donald is appropriate and whether Esmes’ claims are justifiable. An employer must give an employee notice before terminating an employment contract. The notice period is often provided in the employment contract, and the employee is considered employed until this notice period runs out. An employee is entitled to pay during the work period and the notice period. Apart from pay the employee is entitled to work during this period13. The notice period is stipulated in the employment contract, and such notices apply to the employee regardless of the reason for dismissal. There are two types of notices; contractual and statutory notices. Contractual notices are stipulated in the contract while statutory notices are the minimum periods set by statute14. The minimum period of notice required by statutes is that if an individual is employed for a period not exceeding two years the employee is entitled to a weeks’ notice and an extra week for additional years after the two years15. For a dismissal to be fair, the notice period must not be less than the minimum required by the statute. Where the notice period is included in the contract, a period less than the contractual period is a breach of the contract and amounts to wrongful dismissal16. On the other hand, a dismissal can be unfair if an individual is dismissed on grounds that are connected to his activities at a trade union. These activities can include membership, recognition or subscription to a trade union. It is required of an employer to provide reasons for dismissal and the Trade Union and Labor Relations Act, 1992 provides that dismissal of an employee shall be considered unfair if the reason was because the employee was a member of a trade union or had taken part in the activities of a trade union17. Additionally, the act further stipulates that where the chief reason for the dismissal is redundancy and the dismissed employee was in similar circumstances to other employees but picked because of activities linked to a trade union then such dismissal is unfair18. The second letter received by Donald only brought forward the day his post will end, but did not affect the notice period. Because the notice period given by the employer was both within the limits of the contract and not less than the statutory requirement, the notice was fair and as such Donald has no action against his employer. Esme on, the other hand, has to show that other employees were equally subject to dismissal due to the redundancy, but he was picked for dismissal because of his connection to a trade union19. 3 The last section of the assignment will advise both the employers and the employees of claims or liabilities that relate to the transfer and the closure of Keep Fit & Well. The issues discussed in this section touch on the process of redundancy and the rights of the employees as well as claims that might arise out of redundancy. Redundancy is a form of dismissal where the employer needs to reduce the number of the workforce. Redundancy occurs when a job no longer exists due to the need to cut costs, new technology or business closure. The employer must be fair in selecting employees for redundancy. The criteria used by the employer must be objective and fair and must be applied fairly20. Where an employer intends to make less than 20 employees redundant it must consult individual employees and where the redundancy aims at more than 20 employees then the employer must consult with the suitable representatives of the employees. In order for an employer to make an employee redundant, the employer should show that the job will no longer exist after the employee is made redundant, should talk with the employee on alternatives to redundancy and show reasons for selecting the employee for redundancy21. Mugford v Midland Bank22 [1997] held that consultation with a trade union on the selection of employees to be made redundant does not eliminate the need for individual consultation. The consultation should start when the employer makes the decision to make the employees redundant. In Dewhirst Group v GMB Trade Union23 [2003], it was held that consultations must be initiated at the point where the employer makes a proposal to dismiss the employees. Consultations, therefore, must start immediately the need to make some employees redundant arises. When less than 100 employees are to be made redundant, consultations must commence 30 days before giving notice24. The pool of the employees to be made redundant should also be considered. The EAT in Blatchfords Solicitors v Berger25 [2001] applied the last in, first out principle in selecting employees to be made redundant. The case involved a redundancy selection of cashiers who were pooled and selected on a last in first out basis. Sims, who was among the cashiers, was selected for redundancy and appealed against the decision, claiming that an employer did not act reasonably since the only criterion used was the last in first out. The tribunal held that provided the last in, first out criteria was not a means of unfairly eliminating an individual, the process was lawful26. After the consultation period, the employees who are to be made redundant are given notice. The notice period is stipulated in the contract, and this should not be less than the period provided for by statute. Where the period is not contained in the contract the period of the notice should be the period guaranteed by statute. The notice period should be reasonable, and employers can opt to make payments to the redundant employees in lieu of the notice. Payment in lieu of notice implies that the contract is terminated immediately without notice, but the employer must settle the outstanding pay the the worker was entitled to if he had worked for the notice period. There are, however, other instances where notice is not required, and these include summary dismissals. Where an employee does not work during the notice period, no redundancy pay is available27. The amount of redundancy pay available to an employee is contained in the employment contract, and where the contract does not provide this the statutory minimum applies. The amount of redundancy pay available is based on the duration of employment, the age and wages. An employee only qualifies for redundancy pay where such individual as worked as an employee continuously for that employee for a period of over two years. The employee must be dismissed, whether actual, constructive or upon expiration of a fixed term and the reason for the dismissal must fall within the scope of redundancy28. Additionally, the employee must not refuse any other alternative to employment, and the claim must be made within a reasonable time. The alternative offer of work must be made by the employer before the initial contract ends and refusal of such offers means loss of entitlement to redundancy pay. Where the employer is unable to make the redundancy payments, due to insolvency, the employees are entitled to recover this money from the National insurance Fund29. The employees of Keep Fit & Well, therefore, are entitled to redundancy pay from their employer as well as sufficient notice of the dismissal and consultations on the issue. The employees are also entitled to fair selection process to determine the employees to be made redundant. The notice period for the redundancy must be sufficient and the two month period provided by the company is sufficient. Additionally, the employees to be made redundant must be given reasons for the redundancy, which the employer did. Where the selection of employees to be made redundant or the process of redundancy contravenes the set standards, then the dismissed employees are entitled to claims of unfair dismissal where the reasons are not appropriate. The employees can also claim wrongful dismissal if the process involved, especially the notice period or the redundancy pay is not consistent with contractual terms or statute. The employers, on the other hand, have an option of offering the employees alternative work arrangements but such arrangements must be reasonable30. The employer is also obligated to fairly choose personnel to be made redundant as well as make redundancy payments to the redundant personnel. Cases Adams v Derby City Council [1986] IRLR 163 Blatchfords Solicitors v Berger [2001] EmpLR 74 Coxon v Rank Xerox (UK) Ltd [2003] ICR 628 Dewhirst Group v GMB Trade Union [2003] IDS Brief 747 John Lewis v Coyne [2001] IRLR 139 Mugford v Midland Bank [1997] IRLR 208 Tower Hamlets Health Authority v Anthony [1989] ICR 656 West Midlands Co-operative Society Ltd v Tipton [1986] ICR 192 Legislation Employment Rights Act 1992 Trade Union and Labor Relations Act, 1992 Bibliography Arnow-Richman, Rachel S, ‘Just notice: Re-reforming employment at will’ (2010) Barnard Catherine, EU employment law (Oxford University Press 2012) Barrett Rowena, ‘Small business and unfair dismissal’ (2003) 45 The Journal of Industrial Relations 87 Blanpain Roger, The global workplace: international and comparative employment law-cases and materials (Cambridge University Press 2007) Burchell Brendan, David Ladipo and Frank Wilkinson. Job insecurity and work intensification (Routledge, 2005) Deakin Simon, Priya Lele and Mathias Siems, ‘The evolution of labour law: Calibrating and comparing regulatory regimes’ (2007) 146 International Labour Review 133 Dickens Linda and Mark Hall, ‘Labour law and industrial relations: a new settlement?’ (2003) Industrial Relations: Theory and Practice 24. E Galdón-Sánchez José and Maia Güell, ‘Dismissal conflicts and unemployment’ (2003) 47 European Economic Review 323 Earnshaw Jill, Mick Marchington and John Goodman, ‘Unfair to whom? Discipline and dismissal in small establishments’ (2000) 31 Industrial Relations Journal 62 Guest David and Neil Conway, Peering into the black hole: the downside of the new employment relations in the UK’ (1999) 37 British Journal of Industrial Relations 367 Kilpatrick Claire, ‘Has New Labour reconfigured employment legislation?’ (2003) 32 Industrial law journal 135 Knight K G, and Paul Latreille, ‘Discipline, dismissals and complaints to employment tribunals’ (2000) 38 British Journal of Industrial Relations 533 MacLeod Bentley and Voraprapa Nakavachara, ‘Can Wrongful Discharge Law Enhance Employment’ (2007) 117 The Economic Journal 218 Meadows Pamela, Beyond employment: Changes in work and the future of labour law in Europe (Oxford University Press 2001) Painter Richard, Cases and materials on employment law (Oxford University Press 2012) Pissarides Christopher, ‘Employment protection’ (2001) 8 Labour economics 131 Smith Paul and Gary Morton, ‘New Labour’s reform of Britain’s employment law: The devil is not only in the detail but in the values and policy too’ (2001) 39 British Journal of Industrial Relations 119. Stewart Andrew, Stewarts guide to employment law (Federation Press 2011) Read More