Employment Law - Rita and Isla - Coursework Example

EMPLOYMENT LAW, PROBLEM QUESTIONS EMPLOYMENT LAW, PROBLEM QUESTIONS ii). Rita and Isla claims following their dismissals In this case scenario, Rita and Isla should file complaints with the civil courts for wrongful dismissal. Mr Gordon, who is representing Caring community Ltd, who is an employer of both Rita and Isla, has breached legally imposed terms hence illegal dismissing them1. The law entitles an employee the minimum time within which he/she should be notified of the dismissal. Isla had been employed for ten months hence he has the right to a minimum one-week notification of dismissal. On the other hand, Rita had worked for a period of eight years with Caring Community Ltd and is entitled to a reasonable notification of the dismissal. This should be a minimum notice of eight weeks’ notice with each week accounting for each year worked. Since both Isla and Rita had not been dismissed on grounds of gross misconduct, Mr Gordon should have at least considered provision of payment in lieu of notice to the two which he did not. Rita and Isla can also claim wrongful dismissal on the basis of wrong accusations and without adequate evidence linking them to stock theft. On the contrary, it is crystal that Mr Gordon unfairly dismissed both Isla and Rita. This is because the law requires an employee to receive half pay when suspended to pave a way for investigation. Unfairness in the dismissal of the two is evident since their dismissal is not genuinely a job related issue but rather a means of winning his employers trust and favour hence making Isla and Rita scapegoats2. As a result of the above forms of wrongful dismissal, both Rita and Isla are entitled to compensation. With concern for reasonable notice period, the relevant employee benefits should be included. The primary objective of the civil court is to award the employee damages in wrongful dismissal and place him/her in the former position before the notice was issued. All benefits previously enjoyed by the employee during the reasonable notice period should be compensated. Since Gordon had not provided Isla and Rita with payment in lieu of notice or the minimum required notification period, they should be compensated for breach of an employment contract. This is because an employee has a duty to lessen the damages suffered as a result of the dismissal. This implies that an employee, when notified under reasonable time limits, has an obligation to seek and accept alternative employment which is in the employee’s best interests. Both Rita and Isla can thus pursue legal redress through two different acts namely, Severance or Employment standards3. Furthermore, it is clear that both Rita and Isla’s services had been terminated as a result of bad faith by their employer. This is with reference to the case of Wallace versus United Grain Growers Ltd of October 1997. This extends the applicable notice by a further reasonable time limit as a result of physical, psychological and financial losses incurred. Rita is also entitled to a severance payment she has worked for her employer for more than five years. On the other hand, her employer has severed employment of 50 employees within a six-month period as part of the business has been permanently discontinued4. iii.). Concerning undertakings transfer aimed at protecting Employment (TUPE), a takeover clause states that in the situation that a company is facing takeover, the new employer assumes the responsibility of employees. The responsibility of employees goes along with previously set down terms and conditions of employment. The outgoing employer is supposed to provide all form of information concerning employee liability. Due diligence requires an incoming employer to seek all sorts of additional information when considering a transfer or takeover. Information concerning employee liability entails several details about the employees in question. Employee liability information contains employee identity, age, employment details, previous disciplinary and grievance records, collective agreements effected and previous outstanding claims. Upon the completion of the transfer process, employees should ensure they are updated with a written employment statement. This statement contains the name of the new employer as well as stating the validity of previously set terms and conditions. Employees are entitled to P45 statements in case their tax records have been updated. The statutory act on employment of 1996 protects employees from unfair and wrongful dismissal from employment. Wrongful dismissal is seen as a legal breach of contract while unfair dismissal is a violation of the employee rights. Failure by employees to observe the previously set terms and conditions of employment contracts by the new employer amounts to a breach of contract. Should an employee find it unsuitable to work for the new employer, he/she can refuse by resigning and would not be able to have claims of unfair dismissal or redundancy in pay. However, employees who feel their terms and conditions of work have been substantially altered in the course of the employers transfer have a right to end their employment. Upon terminating their employment, they can still claim unfair constructive dismissal. This could be by issuing the employer with a resignation letter and filing a constructive unfair dismissal at either a civil court or employee tribunal. In the above case, previous employees of Quality care Ltd should sue Caring community Ltd for the payment of wages before their takeover. Caring community’s refusal to cater for Quality care’s wage payment prior to their takeover is seen as a breach of a takeover contract. The takeover statutory act laws state that in the event of a company’s takeover, employees’ employment is continuous. The start date remains the same before the takeover hence the continuity of employment is not broken while all previously made agreements remain intact5. On the other hand, the 40 staff members out of the total 50 dismissed by Quality care Ltd prior to the takeover should sue Caring community limited for compensation claims. The compensation should be concerning the lacking of reasonable notification period hence making the dismissal wrongful. The compensation is aimed at returning the employees to their former positions, as well as mitigation of losses accrued as a result of the dismissal. Furthermore, Employees who had served for more than five years are also entitled to benefit from severance payments while employees who had served for more than two years can claim unfair dismissal. Upon a company’s takeover, the new employer may change previously set terms and conditions of working with a unanimous agreement between both employer and employee representative. Caring community’s decision to refuse responsibility for prior wages is not unanimous thus can be termed as unfair6. Concerning the issuance of redundancy notices to the 90 employees, the statutory provisions have clearly stated reasons for the application and entitlement of redundancy. The reason provided by Caring community is not eligible for the application of redundancy; thus the employees notified of redundancy can make legal claims for wrongful dismissal. Furthermore, redundancy notices should be issued to the respective employees prior to the termination of their employment. The redundancy notices are issued with respect to employees’ years of service. From one month to two years are entitled to a week’s notice while a one week cumulative with respect to number of service years is applicable from 2-12 years. For an employee who has served more than twelve years, a maximum of twelve weeks’ notice is issued. Upon making an employee redundant, he/she is entitled to a redundancy payment for the time duration served. Redundancy payment should be made with respect to age and number of years worked. Employees below 22 years of age are entitled to half week’s pay for each full year of active service. Employees above 22 but below 41 years are entitled to a week’s pay for each year of service. Employees aged above 41 years are entitled to one and a half week’s payment for each year of service. The maximum number of active service years is 20 years while the week’s pay is subject to an upper limit. All other employees who were working under zero-hour contracts whose contracts have been terminated also have a claim for unfair dismissal. Since this situation involves constructive dismissal, the employees should act swiftly after the breach otherwise it will be assumed to have been affirmed by the employer7. The most common forms of remedy for wrongful and unfair dismissal are compensation of damages incurred. Damages reflect different losses to the employee and compensation is aimed at putting the employer in the position previously enjoyed prior to the breach. This will take into account all forms of commissions, bonuses or gratuities. Since wrongful dismissal is equal to breach of contract, the same sets of rules that apply to breach of contract apply to wrongful dismissal. In the event of failure to resolve problems related to damages compensation locally, an employee might lodge a complaint with the different tribunals or the civil courts. The related tribunals include industrial or labour tribunals. Employees have the option of representing themselves before a tribunal or civil court but it’s highly advisable to seek for a qualified employment law practitioner8. Bibliography Ely v YKK Fasteners (UK) Ltd [1993] IRLR 500 Wallace v. United Grain Growers (UK) Ltd. (1997), 3 SCR 701 Holland J and Burnett S, Employment Law (Oxford University Press 2007) Lockton D, Employment Law (Palgrave Macmillan 2006) Read More