Employment Law - John Davies - Case Study Example

Heading: Employment Law Report Your name: Course name: Professors’ name: Date Scenario 1 Analysis In this case, John Davies has been performing his duties well before the illness that greatly impaired his performance. John’s responsibility as a researcher is a demanding job with wealth of data to be summarized and reports written about them under tight deadlines, it requires constant concentration. Because of Johns illness as reported by a medical specialist report paid for by the company. It is evident that John migraine is likely to continue for the rest of his life because of his age based on other medical related case. More so, the medical specialist states that despite not being a psychiatrist the clinical depression that John is suffering from is as a result of migraine onset which could possibly last a lifetime. Because of the reduced work output from John as a result of this impairment, the company has became concerned and has also given him poor ratings in the recent appraisal which then disqualifies him from promotion to a senior position which came up a few weeks ago. John has consequently raised a claim alleging discrimination because of his disability. He states that he should not be subject to normal appraisal process as other normal people. The company has however raised its concern that it has tried all ways possible to support John and that there was little room for maneuver his duties given the small size of the company and his specialized roles assigned by the company. The company also states that the responsibility of John is to provide a detailed report and failure to do so will result in dismissal. The company has moreover stated that John has not made any suggestions to the company about how to modify his roles. In order to provide comprehensive legal issues involved in this case, a clear analysis of the legislation and case laws concerning the issue is imperative. As noted by Kloss (2010, p.294) the Code of Practice of 1984 on the employment of people with disability only acted as a fundamental advisory clause on the definition of disability. A (A1) Equality Act (2010) defines disability as any mental or physical impairment which is long-term and has undesirable consequences for the affected person to conduct normal activities as usual. The act covers a wider scope of mental or physical impairment because of the fact that not every detail can be comprehensively covered. It thus sets the standards for an illness to be considered a disability which is protected by the act. In the 4 (1)(a) Disability Discrimination Act 1995, it is forbidden for an employer to discriminate against a disabled persons, in offering employment. In the same act 4 (2)(b), it is a breach of the act for an employer to discriminate against a disabled employee in terms of; terms of employment offered to him/her, opportunities for promotion, training or transfer and other benefits. Also 4 (2)(a) of the DDA Act of 1995 states that the employer may not discriminate on an a disabled person by dismissing him/her or subjecting him/her to other forms of detriment on the ground of his/her disability. According to Moffatt (2007, p. 207-8), on a case hearing The Labour Court dismissed discrimination on the basis that an employee cannot fully discharge his/her responsibility if the employer has not provided reasonable accommodation for the employee’s duties with consideration of his/her disability. This was also evident in the case of Employer v A worker (2005), the worker was compensated as a result of failure of the employer to provide reasonable accommodation for his needs as a disabled person. In this case, John can be considered a disabled person because of the medical provision that provides that John’s migraine was likely to reoccur for the rest of his life. This condition is a physical impairment which also adversely affects John’s normal day to day activities. As evident from this case, the provisions of A (A1) Equality Act (2010) are met. The company on the other hand has been supportive on John’s case but has failed to provide reasonable accommodation with consideration of John’s recent state of health but instead asserts that John has not advised them on how to modify his duties. This statement is a clear contradiction of the previous statement that the company made asserting that there was little room for maneuver given the small size of the company. This failure of the company to provide reasonable adjustments cannot be sustained by a tribunal. Another issue that is clearly pointed by the 4 (2)(a) of the DDA Act of 1995 is the fact that the company has clearly shown discrimination towards John on the ground of his disability by subjecting him to same appraisal as other normal workers and also declining him a chance for promotion based on the recent appraisal which failed to consider his recent health status which had amounted to disability. Based on the provisions of the acts, the company has not substantial ground to defend itself against John because this case is a clear manifestation of discrimination against a disabled person by subjecting him through the same appraisal as other normal workers, clearly denying John promotion and also threatening to dismiss John on the basis of his performance at his current state of health. It is the duty of the company to ensure that the disabled person is not subject to the same condition as other normal workers and also provide reasonable assistance to the disabled person without showing discrimination as the company has shown to John. More so, it is evident that the company can make adjustments to accommodate John as evident by the statement that there was little room for maneuver. Based on this statement, it is clear that the company is unwilling to make adjustments for John and thus discriminating on him as a result of his ailment. Scenario 3 Analysis In this case, Brenda Carver an International Sales Adviser with four years experience in her job with the company has a family with two small children and a partner. She applied for a Field Sales Adviser vacancy in her company; she was not declined from applying for the vacancy and was consequently called for the interview process. She feels that she had handled well the interview process and deserved a chance to work for the company as a Field Sales Adviser. She however failed to get the job on the basis that she did not have adequate experience as alleged by the company. She nonetheless feels that she was not considered because of her flexibility in terms of spending about 4 nights out. Her boss also confirmed this by advising her to apply for the position when her children are older. The company also states that even if their actions were discriminatory, they had no otherwise because of the needs of the company. The company also provided evidence that they had employed female candidates for the same position in the past and hence not a reason to decline her position. Based on this case, a comprehensive consideration of the laws and legislations in the United Kingdom will give clear remedies for this case if decided in a tribunal. According to the provisions of 8 (8)(a) Employment Equality Act of 1998, an employer shall be considered discriminate in any of the following grounds, (a) when the employer deliberately refuses to offer an employee access to promotion opportunities in situation where other eligible persons are offered such access, (b) the employer fails in these circumstances to offer the employee access to the same opportunities. The act clearly states that under no circumstance can an employer deliberately discriminates against an employee on a circumstance that the employer could have treated another person in a different and favorable way. In essence, an employer ought to treat all employees equal under the same circumstances and an otherwise action will result in a breach of the act (Macdonald 2004, p.88). According to Moffatt (2007, p. 183) code of ethics and practice provides a fundamental framework for determining a situation that will amount to a breach of law if unlawful actions are taken by employers which demonstrates deliberate discrimination against some employees. In a case involving An Employee v An Employer (1995) the female employee had been employed by the employer until she resigned after getting married. She continued working for the employer on part-time basis but later applied for a permanent position unsuccessfully. She complained that the employer had discriminated against her on his perception of her situation as inflexible since she had two children and could thus not be transferred as a result of her childcare responsibility. She thus claimed discrimination on the basis of her sex/or marital status that denied her flexibility as compared to other employees with the same qualification. The court ruled the case in her favour as a result of adequate evidence to support her case. In another case involving Marie Inoue v NBK Designs Ltd (2001), Ms Inoue worked as a part-time secretary/personal assistant. Since she was a lone parent taking care of her child, she refused an offer to a full-time job because of her situation and she was thus dismissed. The Labour Court concluded that Ms Inoue has been indirectly discriminated against because of her combination of her marital status, family status and gender ground. The court considered the statistics that revealed more women than men needed to work part time because of their childcare circumstances. The company clearly indirectly discriminated against Brenda because of the following reasons based on the outlined legislations, case laws and code of ethics. Firstly, her employer asserted that she did not meet the required experience and that was the reason for not considering her for the position. This was however not accurate on the part of the company because the candidate that got the job has lesser experience of 18 months as compared to her 4 years experience working for the company. Her boss also advised her to apply for the position in future when her children are older. This is a clear indication that the reason why she lost the position was not because of her experience but rather because of a combination of gender, childcare task and marital status. According to 8 (8)(a) Employment Equality Act of 1998, an employer shall not discriminate against an employee on the basis of situation but instead should offer equal opportunities such as promotions without regard to gender/ marital status or rather perceived responsibilities that may limit her performance. In this case, the tribunal has a strong basis to hold the company liable for committing indirect discrimination against Brenda. More so, the company has fully acknowledged that even if they were discriminatory, they had not option because of the business needs. It claimed that is had subsequently reduced the number of Field Sales Advisers from 10 to 7 and also increased its territory. In essence, all these excuses for discriminating against Brenda hold no water given the provisions of the law and further supported by the case laws considered. A court held liable the employer in the case of An Employee v An Employer (1995) as a result of not being considered for the permanent position as a result of her situation as a mother and thus perceived inflexible for transfers and other duties offered by the company. References An Employee v An Employer (1995) ELR 139 HL Disability Discrimination Act 1995 (Cwith) Employee v A worker (Mr. O) (2005) EED 0410 EAT. Employment Equality Act 1998 (Cwith) Equality Act 2010 (Cwith) Kloss, D 2010, Occupational Health Law, John Wiley and Sons, Manchester. Macdonald, LA 2004, Equality, diversity and discrimination: how to comply with the law, promote best practice and achieve a diverse workforce. CIPD Publishing, London. PP. 78-89. Marie Inoue v NBK Designs Ltd (2001) Ed 34 LC. Moffatt, J 2007, Employment Law, Oxford University Press, Oxford. PP. 182- 211. Read More