Employment Law: Employment Discrimination - Case Study Example

I Employment discrimination occurs when an employee is treated unfairly. This happens when "an employer adversely single out employees or applicantson the basis of age, race, gender, sexual orientation, disability, religion and other reasons."1 This becomes clearly manifested when on account of this, the employer commits discriminatory practices which "include bias in hiring, promotion, job assignment, termination, compensation and various types of harassment."2 The act of Jill, the head of the nursery, in including in the employment reference an unfounded statement that, "There have been several complaints by parents that she (Anne) is unkind to their children" is an act of being unfair. Such a statement is unfounded and biased for the complaints were never brought to Anne's attention. Anne was not informed of the complaints and neither was she given the opportunity to contest or explain herself. It was a malicious statement with the end view of harassing Anne for, they, Anne and Jill have recently "fallen out." Anne is therefore a victim of discrimination. My advice to Anne is to take the matter to the Employment Tribunal. As an employee, Anne has the right to be treated fairly without discrimination. This means that she must be afforded equal opportunities. The act of Jill may have possibly even been the cause for Anne to be denied the opportunity for employment in another nursery. This denied Anne the equal opportunity for a transfer to another job. In the case of Fearon v Chief Constable of Derbyshire [2004], acts of the employer that denies the employee access to such opportunities was considered as an unlawful discrimination.3 Aside from this, Anne was also denied the right to meet her accusers, know the entire details of the complaints against her, defend herself fully against such alleged complaints, be accompanied by a person who can fully represent her cause, and given a fair and impartial determination of the issues as warranted by the general principles of natural justice and fair play. All these, according to the Code of Practice Grievance and Disciplinary Procedures is a clear violation of an employee's rights. 4 Therefore, among other things as discussed earlier in this same paragraph is that Anne also has the right to due process as a part of her employment law rights. II Eileen has a good chance of bringing a successful claim on the unfair dismissal grounds of failure to adhere to procedural rules on dismissal, deprivation of her right to a minimum notice period, denial of her right to appeal the decision and lapse of disciplinary warning. Eileen's act of chatting online during office hours could be a fair reason for dismissal. The fair reasons for dismissal are conduct, inability to do ones work, illness, redundancy, retirement and statutory restriction. She is unable to do her work and the repeated commission of the offense shows poor conduct and discipline.5 Thus the substantive law regarding fair reason for dismissal has been met. The dismissal would have been valid and correct had the requisite proper procedure been followed. Due process requires the fulfillment not only of the requisites of the substantive law but also that the proper procedure be followed in disciplining erring employees.6 Notice of the offense committed and the scheduled meeting should have first been given Eileen. She should have been afforded sufficient time to prepare her answer to the complaint against her. At the meeting the manager would present her with the evidence proving her commission of the offense. She would then be given the full opportunity to explain herself. This procedure was not followed and instead she was immediately dismissed. Failure to comply with the procedural requirements deprives her the right to be heard and is thus violative of justice and fair play. The law requires that the employee be given a minimum notice period to allow the employee time to seek other employment.7 Eileen was immediately dismissed thus denying her the right to the minimum notice period. This right to a minimum notice period is a statutory right meaning it cannot be waived nor ignored. Failure to grant this right has been classed as an automatic unfair dismissal cognizable by the Employment Tribunal as meritorious of a claim. Eileen should have been given a right to appeal the decision of the Manager. She should not have been immediately asked to leave. The employer should have first been notified of the decision of the manager. Upon being notified, he should have made arrangements for another meeting for purposes of granting Eileen the right make an Appeal. This final meeting for purposes of appeal should be presided by another Manager not involved in the initial decision.8 The failure to grant this right to appeal caused Eileen to be exposed to the possibility of discrimination or fall prey to the whim of the initial manager who made the decision for dismissal. Finally, another argument that may be raised is the lapse of the period of the disciplinary warnings. Disciplinary warnings once issued are only for a specified period. This means that the coverage of the warning is limited to said period. After such period has elapsed the same should be stricken off the record of the employee.9 Eileen's last warning was issued 15 months back. To presume that the same is for an indefinite period would be unreasonable and unjust. The law requires that the period of warning must be reasonable. 15 months is deemed unreasonable and thus places the employee always in fear of being dismissed during such duration. Seeing that there was no period provided in the warning and that the elapsed period has been 15 months within which time she has not committed another offense, the same should have been stricken off her record. She should have been given a clean slate after the said period. The importance and effects of placing a definite period is essential. Thus the failure to do so is tantamount to a violation of fair play. III The fair reasons for dismissal are conduct, inability to do ones work, illness, redundancy, retirement and statutory restriction. The act of Harry in disclosing to the media alleged unlawful practices of Green Pea's major corporate supporter, You Have Mail Ltd, is not one of those enumerated as fair reasons for dismissal nor is it analogous in circumstance as those specifically enumerated. His action had no relation whatsoever to his job and neither was there any finding that it affected his work in any way such that it would have created adverse effects to the company. This being the case his action was not in any way related to his job and so he should not have been dismissed because of it.10 He, therefore, was unlawfully dismissed. Although his actions may cause some strain in the relationship between his Employer and YHM the same is not a valid cause for dismissal. He has a right to say whatever it is he wishes to say as part of the exercise of his right to freedom of speech. Although the veracity of the same is questionable, he cannot be deprived of his basic right to free speech. Although malicious may be his intent in his exercise of his right he will have to answer for the same. The company YHM can file the appropriate case against him in court. The media whose responsibility to the public is to provide true information should have researched on the veracity of the statements made for they might have been just mere hearsay as they were eventually proven to be. He violated no rule or company policy but merely exercised his right to free speech. Bringing an unfair dismissal claim against the company is easily facilitated for "it is not for the employee to prove the reason for his dismissal, but merely to produce evidence sufficient to raise the issue or, to put it another way, that raises some doubt about the reason for the dismissal. Once this evidential burden is discharged, the onus remains upon the employer to prove the reason for the dismissal."11 This being so, the chances of Harry bringing a successful unfair dismissal claim is greater. All these four causes: failure to adhere to procedural rules on dismissal, deprivation of her right to a minimum notice period, denial of her right to appeal the decision and lapse of disciplinary warning; having been sufficiently explained can produce a successful unfair dismissal claim for Eileen. IV The necessity to determine whether a worker is an employee or a self-employed contractor is important so that the rights, obligations and benefits of the worker may be defined. The determination of whether or not Sanjay is an employee of KarpetKleen Ltd or is a self-employed contractor is defined by the agreement between the two of them and their actual working relationship. The "written contract must represent the true intentions or expectations of the parties not only at the inception of the contract but, if appropriate, as time goes by."12 The existing contract between KK and Sanjay is entitled "Self-employed Contractor's Agreement." This agreement clearly states that Sanjay is a contractor. Some indicators that a worker is a contractor are: "he owns his own business; he is exposed to financial risk by having to bear the cost of making good, faulty, or substandard work carried out under the contract; he assumes responsibility for the investment; he has the opportunity to profit; he has control over what is done, how, when and where; he is free to hire other people; he provides equipment and machinery necessary for the job other than the small tools of the trade; he can provide the same services to others; he comes to an agreement with the client as to costs and price for the job; he controls hours of work; and, he is obliged to pay preliminary tax and file tax returns."13 But an examination of their relationship shows that this is not the case. As a self-employed contractor Sanjay should have control over what is done, how, it is done, when it will be done and where it should be done.14 But Sanjay is not. He keeps normal hours and is given work for the day. Accordingly, he is not a self-employed contractor for it is KK who is in control. Failing the control test, another test to determine his status is the economic test. "The test is whether the person performing the work does do 'as a person in business on their own account.' Is the person a free agent with an economic independence of the person engaging the service"15 Sanjay fails this also for it is KK who owns the machineries he uses, it is KK who is exposed to financial risk and who assumes responsibility for the investment. Failing both tests, Sanjay is a mere employee of KK. Some indicators that a worker is an employee are: "he is under the control of another person who directs as to how, when, and where the work is to be carried out; he supplies labor only; he receives a fixed hourly, weekly or monthly wage; he does not supply material for the job; he does not provide equipment other than the small tools of the trade; he is not exposed to personal financial risk in carrying out the work; he works set hours or a given number of hours of a week or month; he does not have the opportunity to profit from sound management in the scheduling of engagements or in the performance of tasks from the engagements; he works for one person or for a business; and, the tax and insurance is deducted from his salary."16 This is evident in Sanjay's case. As further proof of the employee-employer relationship is the fact that KK deducts income tax and national insurance from Sanjay's wages just as all employers do.17 Sanjay is therefore an employee of KK and is entitled to the exercise of his employment rights. Works Cited Automatic Unfair Dismissal. Direct.Gov.Uk. Retrieved January 9, 2010 from http://www.direct.gov.uk/en/Employment/RedundancyAndLeavingYourJob/Dismissal/DG_10026100 Code of Practice for Determining Employment or self Employment Status of Individuals. Updated in 2007. Retrieved on January 9, 2010 from, http://www.employmentrights.ie/en/media/code-of-practice-on-employment-status.pdf Cornell University Law School. Employment Discrimination. Retrieved January 9, 2010, from http://topics.law.cornell.edu/wex/Employment_discrimination Employment Discrimination. HG.org World Wide Legal Directories. Retrieved January 9, 2010, from http://www.hg.org/employment-discrimination-law.html Employment Rights Act 1996 Fair Reasons For Dismissal. Direct.Gov.Uk. Retrieved January 9, 2010 from http://www.direct.gov.uk/en/Employment/RedundancyAndLeavingYourJob/Dismissal/DG_10026100 Fearon v Chief Constable Of Derbyshire [2004] UKEAT 0445_02_1601 (16 January 2004) ([2004] UKEAT 0445_02_1601; From United Kingdom Employment Appeal Tribunal; 117 KB) Handling Disciplinary Actions. Direct.Gov.Uk. Retrieved January 9, 2010 from http://www.direct.gov.uk/en/Employment/RedundancyAndLeavingYourJob/Dismissal/DG_10026100 Kuzel v Roche Products Ltd [2007] UKEAT 0516_06_0203 (2 March 2007) ([2007] ICR 945, [2007] IRLR 309, [2007] UKEAT 0516_06_0203; From United Kingdom Employment Appeal Tribunal; 37 KB) Labor Relations Commission. Code of Practice Grievance and Disciplinary Procedures Retrieved January 9, 2010, from http://www.employmentrights.ie/en/media/CodePracticeGrieveanceDisciplinaryProcedures.pdf Labor Relations Commission, Grievance and Disciplinary Procedures. Page.6 no. 14 General Principles Protectacoat,Paragraph 50, the most recent decision of the Court of Appeal to which the Employment Tribunal is bound in the case of MPG Contracts Ltd v. A England (Junior) & Anor [2009] UKEAT 0488_08_0805 (8 May 2009) ([2009] UKEAT 0488_08_0805; From United Kingdom Employment Appeal Tribunal; 26 KB). Read More