Standard Health Care Ltd v Gorman - Case Study Example

Unfair Dismissal Customer’s Name: Customer’s Course: Tutor’s Name: Word Count: 2000 (Excluding Footnotes) Employment law exists to give employers proper guidelines and rules that are to be followed when they have to dismiss an employee. Thus, employment law with the help of the ACAS Code of Practice which is in No. 1 Disciplinary and Grievance Procedure exists to safeguard employees from being unfairly dismissed and also provides the general guidelines and rules that are to be followed in the event that an employee has to be dismissed and also what is to be done by the employee if he/she feels that his or her dismissal has been unfair. Unfair dismissal1 arises when an employer terminates an employee’s contract and the termination is contrary to the requirements stipulated in the Employment Rights Act 1996. However, there are instances where the employer can dismiss an employee on fair grounds for instance, any reason that makes the employer question the conduct of the employee, any reason that also raises questions as to the employee’s qualifications and the capabilities of the employee to the job and if the employee’s job is found to be uncalled for2. Fair dismissal of the employee by the employer may be because the employee has reached the retirement age as stipulated in the Employment Equality (Age) Regulations 20063. The employee can also be dismissed if there is a statutory duty that requires that the employee’s employment not to be continued. The employer can also hold any other reasonable justifications that the employee needs to be dismissed. In matters relating to unfair dismissal, emphasis is placed on whether there has been unfair dismissal of an employee by the employer by the Employment Tribunal and therefore matters relating to whether warnings that has been issued to the employee are of great factor in deciding whether there has been unfair dismissal. However, exceptions to lack of warnings served to the employees exists for instance, if there is a summary dismissal in the event of a gross misconduct, if the employee’s conduct cannot be redeemable, if the employee has shown no signs of improvements and where the employee is already aware of what is required of him or her. However, an employee can challenge the employer’s dismissal even if formal warnings before an employee is dismissed can be dispensed and they include; the time an employee has served in a certain organization and the employee’s general conduct in the organization. These are the exceptions that the employee can use to mitigate dismissal and hence in Clarissa’s case, then there was unfair dismissal for she had served in Precision Missiles plc for over 30 years and she was not given time to challenge the allegations of unfair dismissal or accept the dismissal and appeal to the employer. In this regard also, her conduct in the organization was excellent which can be inferred by the organization’s trust in her for instance she was the one who was involved in all major displays even where foreign governments were present. In regard to Clarissa case versus Precision Missiles plc, it might appear that the defendant has no grounds upon which she can claim for unfair dismissal the Ratio Decidendi being that, her contract was terminated because the employer lost faith in her work and the reason why she was sent home on a garden leave is because her managers feared that she could jeopardize the safety of her colleagues. The terms of the contract stipulated that there was to be a six months notice from either party to the contract which Precision Missiles plc adhered to, there was to be no garden leave. Though the employer’s reasons for dismissing Clarissa seems to be reasonable enough for dismissing her, the Employment Tribunal would not be so interested as to whether the reasons were enough for dismissal but whether the dismissal was fair or unfair4. In addition, the garden leave clause was expressed in the employment contract and hence the employer had no right to forcefully imply a garden leave on the defendant5 and hence unfair dismissal owing to the fact that Clarissa was also willing to work for the company. 6Precision Missiles plc, had a duty to provide work to their employee (Clarissa) according to paragraph 563 up to paragraph 570 of the Harvey Industrial Relations and Employment Law. It is therefore regarded as good law with a good common sense where the obligations of the employer to employee and vice versa are interdependent. Thus Clarissa, even with a salary in lieu of the notice was unjustly dismissed. To top it up, in law, in the event of a written term against an implied term, law follows the expressed term and thus the expressed term should been taken to account or prevail when deciding whether there was unfair dismissal7. In addition and in light of the principles relating to fairness and which should be applied, Clarissa was unfairly dismissed because though she was served with an informal warning, the right procedures through which she would have followed to challenge the dismissal were not followed. This procedures are outlined by ACAS whereby the employer was to first of all hold a meeting with Clarissa and communicate to the employer of the mistake that she did even if the mistake was outright8. This exception was necessary because Clarissa had served in the organization for long enough to warrant the exceptions and have her go through all the disciplinary procedures that are to be followed in such cases9. This then introduces the next concept of whether Clarissa could accept a job by Flare Missile Ltd.. In questioning whether Clarissa with the six months notice and a salary in lieu of the notice, the issue of whether Clarissa can lawfully accept Flare’s offer of employment should revolve around the actual date of termination of the employee. Cascade contract should end on 31st March, 2012 but Flare Missiles offers Clarissa a job and Flare Missiles Ltd. contract is on condition that Clarissa can start working with Flare Missiles on 1st February 2012. Controversies in the scenario are in regard to the actual date which termination should be said to take effect. Should the date of termination be when the employer gets rid of the employee and pays wages in lieu of the notice taking particular interest that Clarissa if she continued to work for Cascade, she had access to the rapidly changing missile technology and also all the secret guidance systems of Cascade and that she got a job offer from a rival company10. Should the date of termination be when the notice expires or when the employee is summarily dismissed by the employer and leaves the company despite the fact that the employee will be given a salary even when she is not working? Considering the fact that are in this case, the date of dismissal should be taken to be the date that the notice served by the employer to Clarissa expires, then Clarissa is still under Cascade and therefore not supposed to work for Flare Missiles under law. Therefore, the facts of the relevant following case will open up to the decision of whether Clarissa can accept Flare’s offer. In reference to the case of Evening Standard Co. Ltd. v Henderson [1987] ICR 588, Mr Henderson, (the defendant), against Evening Standard (plaintiff) in appealing against a decision made by Mr. Justice Evans, whereby the judge refused to grant the plaintiff an interlocutory ban on the defendant Mr. Henderson in working for a rival company for approximately 10 months before his contract was allowed by Lord Justice Balcome. According to Lord Justice Balcome, the injunction should have been allowed for not allowing the plaintiff to simply move to the new rival company for it would have hurt the plaintiff’s company. In addition, the defendant only gave two months notice and the motive behind the notice was to move to a different rival company11. Comparing the arguments put forth by Lord Justice Balcome, Mr. Henderson main motive in issuing the notice in two months time was not because Evening Standard Co. Ltd. did not provide him with the benefits he claimed were denied from him and hence the reason he wanted to quit the company but because he wanted to join the rival company. Clarissa with no implied obligation from the employer not to work for a rival company should accept the offer made by Flare Missiles. The Ratio Decidendi behind this reasoning is that Precision Missiles plc, even on garden leave chose to hold her to her full terms of the contract. Precision Missile plc, are therefore not entitled to have an interlocutory injunction preventing Clarissa in joining a rival company by the mere fact that there are providing remuneration to the defendant. The defendant can claim that she was unfairly dismissed and hence rendered idle in regard to trite law and hence she was tempted to accept the offer made to her by Flare Missiles Ltd. Even if the plaintiff can put up a defence of wanting to protect the company’s vital information and also the safety of other employees in the company and hence garden leave to Clarissa. However, the fact that there are implied obligations between the employer and the employee and which are not stipulated in employment contracts, for instance, the obligation that an employee is not supposed to work for a rival company while still in contract with the other company, thus fact can be overlooked in the case of Clarissa for the employer breached the contract with Clarissa. Trite law stipulates that a defendant should be liberated on whether to work for the plaintiff or not, and also the defendant should not be starved or put in a condition of idleness12. When the word idleness is taken into consideration, Clarissa is being paid despite her dismissal and but her skills are not utilised. Taking also the proceeding of the case of Symbian Ltd v Christensen [2001] IRLR 77 CA, if in the employment contract the garden leave is expressed and then the employer sends the employee on garden leave, the employee is automatically relieved of the implied obligations to the employer. Clarissa’s loyalty and faithfulness to the employer therefore ended when the employer breached the contents of the contract and sent her on garden leave and hence she is at liberty to accept Flares Missiles Ltd offer. The act of revoking the contents of the employment contract without noticing the employee means that the employer has undermined the relationship between him and the employee and hence the employee can work for someone else13. In reference to the case of Standard Health Care Ltd v Gorman [2010] IRLR, the plaintiff, standard health care chose not to treat the termination of the employees with immediate notice as repudiation, but to hold the contracts in full account and hence the employees were said to breach the contract that they had entered with Standard Health Care Ltd. Prior to the case, Standard Health Care discovered vital information that the employees were terminating their employment for reasons that they wanted to join a rival company14. In Clarissa’s case, the termination came from the employer and not the employee and thus free to join Flare Missile Ltd.. Precision Missiles plc, the employer was under obligation to provide work to the employee. This fact is clear in the case of SG&R Valuation Service Co LLC v Boudrais [2008] IRLR 770, whereby it emerged that if the employment contract stipulates that the employer is under obligation to provide work, then the employer is to provide work. In this regard also, the skills which Clarissa has can be rendered stale if she is to stay out of work for long15. In addition, Clarissa was willing to work for the company and hence the employer had no right to deny her work and hence Clarissa can accept the offer made by Flare Missile Ltd. In conclusion, an employment contract should not leave any room for implied terms and conditions between the employer and the employee to avoid misunderstandings. References Acas Website. Retrieved on 23rd November, 2011. Retrieved from www.acas.org.uk Cabrelli, D. (2009). Law Express: Employment Law. Harlow. Longman Publishers. 2nd Ed. Employment Equality (Age) Regulations 2006 Evening Standard Co. Ltd. v Henderson [1987] ICR 588 Lewis, D. & Sargeant, M. (2004). Essentials of Employment Law. London. Chartered Institute of Pesonal and Development. 8th Ed. Lockton, D. (2011). Employment Law (Palgrave Law Masters). Basingstoke. Palgrave Macmillan. 8th Ed. Morris, G. & Deakin, S. (2005). Labour Law. UK. Hart Publishing. SG&R Valuation Service Co LLC v Boudrais [2008] IRLR 770 Slocombe, M. (2010). Employment Law Made Easy (Lawpack Made Easy Series). London. Lawpack Publishing Ltd. 8th Ed. Smith, I. & Baker, A. (2010). Smith & Wood’s Employment Law. 10th Edition. UK. OUP Oxford. Standard Health Care Ltd v Gorman [2010] IRLR 233 CA Symbian Ltd v Christensen [2001] IRLR 77 CA William-Hill Organisation Ltd. v. Tucker [1998] IRLR 313 CA Read More