Discrimination and Conflict in Employment Law - Case Study Example

Discrimination and Conflict in Employment Law Case Studies Archibald and Carrie both started working for the company around the same time, Carrie one month after Archibald. Their dismissal letter gave them more than their four weeks’ contractual notice. Archibald has received a second dismissal letter bringing forward the end of his post by a fortnight with the result that he will have worked for the company for 100 weeks, that is less than two years, by the time he leaves. . Firstly can it be shown that the company deliberately choose to sever his employment at this point rather than waiting a few more weeks? The fact that he received two letters suggests something fishy going on. This can also be applied to Carrie whose employment period is only a little shorter, but was getting close to the two year period. Carrie thinks that was the reason she was selected for dismissal was her union activity. These cases may be covered by the Employment Rights Act of 19961. In neither case is a reason for dismissal given. Under this legislation the employee can take his case for unfair dismissal to an employment tribunal2. If however they had been taken on after April 2012 the employer could dismiss them in the first two years and they would have with no right to make any claim for unfair dismissal3. In Archie’s case was he dismissed simply because he would have more rights if he stayed longer with the company? Would he have been entitled perhaps to a pay rise or a long term contract? Is the company acting because it is cheaper to take on someone new? The government will give them a subsidy for taking on a previously unemployed person. According to the Ipswich Employment Action ( 2010) companies in the United Kingdom can claim £2500 if they take on a Jobseeker. In Carrie’s case all these things apply, but she also has to ask have other union activists also be dismissed? Has her union work detracted from what she does in her job? Bertie, a 36 year old systems consultant, has applied for promotion to principal consultant level. Promotion is based on achieving a number of points based on various performance indicators, the person with the highest number of points being promoted. The only other candidate on the shortlist was Rikki, also 36 and who had just returned from maternity leave. Fearful of a claim for pregnancy discrimination, the promotion panel gave Rikki full marks for any criteria that involved the period during which she was on maternity leave. Bertie has not been promoted. In Bertie’s case , although those who need to take maternity leave do require protection 4, it seems he has lost out unfairly. The other employee’s score should have been based on an average of her previous performance. This would have been fairer. Bertie should take this to a grievance procedure where both candidate’s real performances can be assessed. Under the Equality Act of 2010 a pregnant woman cannot be treated less favourably than a man. She must be able to show that ‘but for’ her pregnancy she would not have been treated less favourably. It does not however say that she must be treated more favourable. Sadiq is a Muslim and has been employed as a security guard working at various premises of the company’s clients. On Fridays he would take a long lunch break and attend prayers at his mosque. Following a new, valuable contract with a property group, he was assigned to a fixed location a short walk from his mosque. However, his new line manager has insisted that he must not leave the premises during working hours or be disciplined. Under the terms of the company’s contract the guards have to be present at all times during their shift so that they can interrupt their lunch break should a situation arise. When Sadiq complained about the effect of this instruction, the company suggested that his hours of work could be amended so that he worked during the weekend at another property but he declined that offer. In Sadiq‘s case he has worked at a number of different premises , and this is therefore part of his normal work activities. A Muslim can pray in any situation , except for certain areas considered to be unclean5 and attending a mosque is not essential It seems that the company is offering a reasonable compromise. On the other hand other line manager’s hadn’t found his actions to be a problem and it is quite normal practice for people to leave their place of employment during lunch breaks. Is this rule being applied across the board? Why has it been changed? It seems it is part of the contract, but should it have been? How long is this contract likely to be in place? All these questions need to be answered if a fair decision by any grievance meeting. Also, under the Equalities Act , 2010, Part 2 , Chapter 1 , Section 10, Sadiq cannot be discriminated against because of his religious belief6. Wilfred is a receptionist and speaks with a thick Caribbean accent. Some of the clients tease him about his accent. He has complained about this behaviour to his superiors, but they simply sympathise and say there is little they can do as they can’t discipline clients. In Wilfred’s case employers have a duty to protect their employees from harassment under Section 26 of the Equality Act of 20107. Harassment is considered to have taken place when it has happened at least twice, even if this is not necessarily from the same third party such as a client. It is defined as:- violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The employers have already put up a notice asking clients and visitors to treat the receptionist with respect. Is this enough? Would Wilfred be better off in another role within the company? What does he think about that? Most companies value the way in which receptionists are the first glimpse any clients have of their company and so want the best of them. As they say it is very difficult to control the actions of clients and visitors. How does Wilfred feel about his accent? What would he think about modifying it somewhat? Many people from the West Indies may use more than one accent and dialect on various occasions – one with grandmother perhaps, another with their peers and a third with work colleagues from other backgrounds. It doesn’t diminish them as people, but rather enhances them if they are excellent communicators, and if they are better understood by a particular group. If Wilfred understands this perhaps he will consider taking some steps to modify his accent. His employers should support him in this. Tom works in the accounts department as one of two part-timers ,with the rest being on full-time contracts. He has asked to go on a training course that some of his full time colleagues have been on but has been told that it is only available to full-timers. Ray has applied to join the accounts department. He is a former soldier and has an MBA but has been told that, while he meets most of the criteria, former military personnel will not be shortlisted for that role as the head of department believes they lack commercial acumen. With regard to Tom and his part time status it must be asked why should this affect his need for training if it is considered necessary for others? Is his work basically different despite being in the same department, because this may mean that the particular training is not applicable to him because it is simply irrelevant to his particular role in the company. It depends upon the type of training being offered. Is it for instance with regard to health and safety, in which case it should be for all. Is it about making them better fitted for promotion? If promotion is only possible for full time employees that is a different matter. Tom has not been given a satisfactory explanation. He has a statutory right, if qualified , to request training from his employer if such training is designed to improve :- (a) the employee's effectiveness in the employer's business, and (b)the performance of the employer's business8 Is a part time contract his choice? Whatever the situation with regard to his contract there are regulations in place which say that part –time workers should not be discriminated against simply because they do not work full time 9. In particular it says in the explanation of the regulations :- Employers should not exclude part-time staff from training simply because they work part-time. Training should be scheduled so far as possible so that staff, including part-timers, can attend. These regulations became law in July 200010 and cover such things as defining what constitutes working part-time, contracts. Part II is entitled ‘Rights and Remedies’ and aims to put right many ways in which part timers, now a major part of the work force, had been previously discriminated against because of a lack of legislation to prevent this. In Ray’s case the head of department automatically dismisses prospective employees simply because they have served in the military. Yet Ray has an excellent qualifications .There are a number of anti -discrimination laws in place , but these refer to such things as age or gender. However the Declaration of Human Rights states :- Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.11. Ray has a case for accusing the employers of unfair discrimination.. He has been told that he meets most of the declared criteria. He does seem to have a possible case to take to a tribunal on the grounds of unfair prejudice. He has been in the military. Why should this mean that he is unfit for other work? As only a prospective employee he is in a weaker position than someone who already has a contract. However, according to the United Kingdom government web page a case against an employer can be taken to a tribunal “if you think they’ve treated you unfairly, or broken the law12.” It does however say ‘Your employer’ References Legislation Employment Rights Act of 1996, .legislation.gov. uk accessed 11th March 2013 Equality Act, 2010 , Home Office, accessed 11th March 2013 Fair Employment and Treatment ( Northern Ireland) Order 1998, < http://www.legislation.gov.uk/nisi/1998/3162/contents/made> accessed 12th March 2013 Gov U.K. Taking your employer to an employment tribunal https://www.gov.uk/employment-tribunals/taking-a-case-to-an-employment-tribunal accessed 13th March 2013. Industrial Training Act, 1964 < http://www.legislation.gov.uk/ukpga/1964/16> accessed 12th March 2013 Industrial Tribunals and the Fair Employment Tribunal, ( undated) < http://www.employmenttribunalsni.co.uk/index/employment_tribunals/industrial_tribunals.htm> accessed 12th March 2013 The Part-time Workers (Prevention of Less Favourable Treatment) Regulations (2000), Explanation, Legislation Gov.UK accessed 12th March 2013. The Part-time Workers (Prevention of Less Favourable Treatment) Regulations , 2000 Number 1551,(2000) < http://www.legislation.gov.uk/uksi/2000/1551/made> accessed 12th March 2013 United Nations, Declaration of Human Rights, 1948 < http://www.un.org/en/documents/udhr/> accessed 12th March 2013 Other Sources Al-Islam, undated, Mosque and praying places, http://www.al-islam.edu.pk/prayer/sec5.htm >accessed 11th March 2013 Landau, P., 2013, You gotta fight for your employment rights, Telegraph News, accessed 11th March 2013 Answer ALL of the following questions: 1. Archie and Carrie are seeking legal advice following their dismissals. Consider any claims they may have. 2. Discuss the prospects of any discrimination claim Sadiq could bring. 3. Bertie feels unjustly treated and is considering resigning. Explain what claims he may be able to bring. 4. Briefly outline what, if any, claims Tom and Ray could bring against the company. In order to answer the questions you will need to read relevant statutory provisions and cases dated up to the end of October 2012. To achieve a pass on each of the questions there must be some evident knowledge and understanding of the relevant law and, as they are problem questions, some attempt to apply it. The better the explanation of the law and the better the ability to apply and discuss it (including the citation of relevant primary sources), the higher the mark to be awarded. Detailed facts of cases are not expected unless this is inherently required by the question, because of its similarity to/distinguishability from a previously decided case, or doing so assists the explanation of the law. For an answer to be awarded a mark in the upper second/first class range it must, among other criteria, explain and apply/evaluate the law correctly and coherently and generally cite relevant legal sources and authorities (some deduction should be made for inappropriate use of old Acts/Regs but an otherwise good answer could still get a reasonably good mark). Conclusions, which are consistent with the discussion, should be provided along with an explanation of any remedies that may be awarded (if applicable). Evidence of wider research, a fuller understanding and a strong analytical ability should be evident for a first class mark. Referencing: Students should reference sources using the system common to their respective department (or by using OSCOLA). The referencing must, however, be consistent throughout. Reference should be made to the primary source, except when the primary source can no longer be obtained. Poor citation of sources will result in a loss of marks. Read More