Employment Law: Julia Joins Silkos - Essay Example

Employment Law: Case Study-Julia Joins Silkos Introduction Employment as such is a need for the worker for his livelihood as well for putting his abilities to the best use. Similarly, a company requires able people to carry on with the business in the best possible manner. Therefore, the relationship between the two parties is of mutual benefit and for the relationship to work, both parties have to agree to certain terms of agreements. For example, the worker has to be clear about her preferences, her expectations in the form of salary, perks, privileges, leaves etc. The company on its part, will judge the suitability of the individual by correlating her expectations, her abilities and company's position. If all goes well and the individual is found suitable, the company makes an offer of employment explaining some of the requisite details. The worker is then supposed to go through the details and agree to it, before joining the work in the company. At times, it so happens that both the concerned parties agree to some kind of informal arrangement in the beginning, which needs to be formalised in due course. But it is worthwhile here to mention that the successful implementation of the 'agreed upon' terms and conditions in such a scenario depends totally upon the 'faith' that both the concerned parties have on each other. Such a faith generally arises when both parties know each other well, understand each other, respect each other's strengths and sentiments. It is generally observed that, in such cases, concerned parties never try to undermine the position and efforts of each other. Sometimes, it so happens that the company bosses are able to 'read' the eagerness on the part of the individual to lap up the opportunity at any cost. Under such circumstances, companies start exploiting the individual and the situation to the fullest advantage of the company and often to the disadvantage of the individual. Such circumstances often lead to unsavoury situations and litigations hanging on for years together. But under such situations, how the Employment Law comes to the rescue of the individual depend upon a number of factors and merits of the case. The case of Julia Julia saw an opportunity in finding a quantum jump from the post of a sales rep to a management position with a motor car and bonuses. After successfully going through the selection process, she was offered the position with the strings attached that she will have to manage 8 other sales reps. Though there were quite a few things in the advertisement, but the offer, it appears was a verbal one, to which Julia readily agreed. This is where the legal aspect appears somewhat weaker in the case. If we take an independent perspective of the total scenario, this case appears to be slightly different from an ideal one. Here both parties do not seem to have an intimacy to the extent of generating mutual admiration and faith on each other. The company having recruited Julia at a senior position, ideally should have handed over the 'contract of employment' prior to her joining the company, without her asking for it. Julia on her part could have gently enquired about the document and waited for couple of days more for it to be delivered to her before joining. It seems the company offered her the job and related privileges provided she agrees to line manage 8 other sales reps. And the company agreed to give her the bonus 'only' if she proved to be motivational enough for her team and the team in turn is able to deliver the results, by meeting the target sales and generating enough cash for the company. Besides the team of Julia, there are other workers as well working for Silkos. Based on the combined performances of all these workers, fate of Silkos is being decided. It is quite apparent that Julia received the agreement papers well after the stipulated time period, but the moot point is, Julia chose not to raise the issue at that time and is thinking to sue the company after 2 years, that too when the company itself is in trouble. She did not see anything wrong in the employment contract for these two years, so legal battle cannot be carried forward citing the 'delay' in handing over the papers. The legal battle is fought on the basis of available facts of the matter and the view expressed from time to time on particular circumstances by the legal fraternity. It is quite clear that in this case, the company had offered the job to Julia provided she is able to motivate and deliver. Motivation may be defined as the state of an individual's perspective which represents the strength of his/ her natural inclination to exert efforts towards some particular behaviour. In this case motivation implies how Julia is able to pursue her team members to deliver. How somebody makes use of his/ her efforts towards a goal is determined by the motivating/ de-motivating factors. It is through their behaviour that employees give expression to their commitment to work, level of motivation and their attitudes. For the company, this sort of motivation reflects in the facts and figures, the sales figures, and the balance sheet. The company on its part can also decide to judge the performance of Julia's team on an individual basis and accordingly decide about the bonus etc. Being a professional, it can be assumed that Julia must be aware about the professional conduct expected from her. This included the ways of means of pursuing some matter with her seniors and the concerned departments. At the first place she erred when she joined the company without allowing the procedures to be completed. Secondly, it is quite intriguing that pursuing an issue like the 'contract of employment' she ended up annoying her bosses. Ideally, it can be expected that she being the leader of a team, should have been an example for her team members. Howard Good (2006), the former president of Highland Central School Board in Highland, N.Y., says, "Being board president brings power and prestige, but you must inspire and help others to be successful". A team leader therefore plays the central role in making or breaking the team. It is the team leader who can synergize the efforts or just wither away the advantage, with his actions. Therefore, from this practical aspect Julia seems to have lost some ground in the company. It is said that actions speak louder than words and the fact that she invited the wrath of her bosses in the initial three months only will be used as a tool by the company to defend its actions, in case need arises. The unhappiness might have been marked into her performance appraisal reports, which has the potential to weaken her case. The company subsequently handed her the all important paper but, with lesser than 'verbally agreed' privileges. If we go by the rule book, 'verbal agreements' stand slim chances in front of legal trial, particularly in such cases where both parties are professional and well educated. Moreover, the company did provide her with the agreement papers within three months. By regulation, the employees who are employed to work for more than one month are permitted to a written pronouncement of the state of affairs along with minutiae of their contract of employment within two months of preparatory work. The requirements involving an employee's right to accept a written declaration of service. The details are controlled within the sub section 1.7 of the Employment Rights Act1996. The essential elements of a contract of employment as per this act are1; Commencement of employment and continuity in service Job title and duties Place of employment Hours of work Holidays Remunerations Nature of employment Pensions Sickness absence Grievance and Disciplinary Procedure Collective Agreements Notice period for Termination Working outside the UK Acceptance and acknowledgement As regards the contract agreement, and for the legal battle, if required, two pertinent questions need factual answers; i. Did the company insist on her joining in such haste, before completion of all formalities ii. Did the company give her some undertaking to the effect that she'll be handed over the contract in due course The success or failure of legal battle hinges on these two vital queries. Providing a luxury car, deciding about the number of holidays, pay packages etc. are no doubt dependent upon the contractual obligations, but these things also depend upon the financial viability and paying capacity of the company. In addition the perks and privileges also depend upon how the company is dealing with other employees. Julia seems to have faltered at one more place, that is, while judging the effectiveness of employees unions. Julia did not join a union considering it to be making unreasonable demands on a company in difficulties. Well, perceptions about unions vary depending upon a range of factors like one's own experience, policies of the government, policies of the company, behaviour of the union members and leaders etc. But, generally it has been seen that Unions have come to the rescue of the workforce when the companies are difficult position on account of wrong policies adopted by the company or something for which the contribution of general workforce can be termed as minimal. It is also worth mentioning that when unions negotiate something with the management, then it has be equally applicable to all concerned. The company can of course decide to add some topping to it for the chosen few, but it cannot give less than what has been agreed with the unions. In this case as well, the company has negotiated certain agreement with the unions and implemented it accordingly. Such collective bargaining agreements (CBAs) with recognised and registered trade unions have a legal sanctity as far as employment laws are concerned. Since Julia doesn't have anything in black and white ensuring 4-5 weeks holiday per annum, therefore, the chances of any legal assistance increasing here holiday entitlements appear quite remote. Employment as the word implies, is in fact a contract which takes place between two parties. One of these two parties is the Employee and the other is the Employer. There are various definitions of an employee in legal frameworks. But in terms of one of these definitions 'an Employee is defined as an individual who is under the command and service of another individual'. This is in terms of a specified contract, which was brought about during the hiring process. This Hiring contract may either be expressed or else implied, written or else oral. Here in under this contract the Employer possesses the right to be in command of the Employee and all his instructions2. In this case, though there doesn't appear much dispute on the issue of accepting the command by Julia, but she appears to be rather peeved by the fact that her team has been reduced to half of its size. This could have taken place on account of reasons like disinclination shown by the team members to work under Julia, non-performance of the team, requirement of more able members in other teams, reallocation of tasks, lesser work with the team of Julia etc. Therefore, in this case the management appears to be within its rights to put in place the workers as per the requirements. Union could have questioned the management on this issue, but Julia is not a member of the Unions and doesn't appear to be become one as of now. For want of a clearly stated written agreement, Julia doesn't have much legal support. In the case of ABC News Intercontinental Inc v Gizbert (2006)3 the Employment Appeal Tribunal (EAT) actually overturned the original decision of the tribunal, in which Mr Gizbert was granted some relief. The EAT cited Mutuality of Obligation in Employment Contracts as the reason for overturning the earlier relief. In this particular case, Mr Gizbert worked as a foreign news correspondent with ABC News Intercontinental, which included covering the war-zone assignments as well. But in 1997 he started to decline war zone assignments because of the risk involved and family commitments. Subsequently in the summer of 2002, ABC and Mr Gizbert renegotiated his contract to allow him to work on a freelance basis. The new contract guaranteed Mr Gizbert a minimum of 100 days work per annum with ABC, at a rate of $1,000 per day. Importantly, the contract reserved for Mr Gizbert the right to decline any assignment, which was offered by ABC and, other than the contractual entitlement to 100 days per year, allowed ABC not to offer Mr Gizbert any further work. Despite the contract being renewed for a further year in 2003, and despite the fact that Mr Gizbert had worked 236 and 172 days in 2002 and 2003 respectively, following a series of budget cuts made by ABC in 2004, Mr Gizbert's employment was terminated. The case is worth mentioning here because, despite the written agreement favouring the employee, the company terminated the services of the employee, and got away with it as well, while in case of Julia there's no such substantive agreement about the Saab, perks, holidays, bonus etc. then will it be worth to challenge the decision of the company Julia seems to be quite upset by the decision of trimming the size of her team. Here too, no written agreement appears to have taken place regarding the minimum size of the team. In a somewhat similar case of Home Office v Evans, the Court of Appeal upheld the right of the employer to relocate the employees in the interest of the service, provided no ulterior motives are apparent. In this case, there were far too many supporting arguments and facts in favour of the employees, and the employees did manage to win from the EAT and subsequently from the tribunal, which upheld the workers contention, but the Court of Appeal overturned these judgements and ruled in favour of the employer4. In this case; "Mr Evans and Mr Laidlaw (the claimants) were Immigration Officers based at the Waterloo International Terminal (WIT). The Home Office sought to enforce the claimants' contractual mobility obligations on the closure of immigration control at WIT. On 13 May 2004 the closure of WIT was announced and in a letter to all WIT staff the Home Office stated that it wanted to engage with staff individually to offer alternative employment. Staff were informed that mobile staff might be compulsorily transferred to meet business needs within their terms and conditions of employment and non-mobile staff might be transferred to posts within reasonable daily travelling distance. Despite repeated attempts to arrange meetings with them, the claimants refused to engage in the process. On 13 August 2004 the Home Office informed the claimants that they would be transferred to Heathrow. The claimants subsequently resigned from the Home Office and presented claims alleging that they were non-mobile grade employees and that their resignations amounted to constructive dismissal5s." The employees then moved the tribunal claiming that, they had been 'constructively unfairly dismissed', which ruled in favour of the petitioners. The company went to EAT, where also the contention of the petitioners was upheld. And, subsequently, the matter landed up before the court of appeal, which overturned the earlier judgements. As for the holidays, the recent amendment to the clause containing the number of holidays per annum point towards some discrepancy in the policies of the company, but it too has some grey areas, for example the company being in the red, a loss making proposition, entered into an agreement with the workers' union, which resulted in reduction of the number of paid holidays for the workers, till the company is able to cross over the difficult times. The Working Time (Amendment) Regulations 2007 (the "Regulations") came into force on 1 October 2007. From that date, they require UK employers to give employees four days' paid holiday per year in addition to the 20 days' paid holiday to which they are currently entitled6. This regulation stipulates that the number of minimum paid leaves will increase further to 28 days starting 1 April 2009, which is good news for the employees. But, as of now, in case of Julia there's not much which can bring her any legal respite. Conclusion Julia needs to give all aspects a serious thought with a balanced approach. In view of the circumstantial evidence, it would be advisable for Julia not to be too aggressive in her approach just because she thinks that she has been wronged. Instead it would be far more wise decision for her to continue with the company, work diligently, deliver on the expectations, impress the management and wait for the company to come out of red. Once the company becomes profitable, then there's every chance that the Saab returns back to Julia. The legal course appears too cumbersome and uncertain for now. But, with a critical analysis of the case-study, Julia's alternatives can be summarised as; i. To sue the company for not issuing a written contract. Well, the other side is, Julia herself was in a hurry to join. Nonetheless, what comes as a breather for Julia is; in the absence of any written agreement she could have left the company without giving any notice period, as no such terms could have been found on paper. Law will accept the oral contract as a valid agreement since the circumstances after this 'oral agreement' point out that Julia had no objections to it and she joined the company. ii. Julia can also go ahead with a gender discrimination case, detailing the incidents; she can approach the tribunals with a plea that she being a female is not being treated well by the company. To further strengthen her argument, it will be better if she could collect more of such data from other female members of the staff. iii. Julia can also approach the union leaders with a request to plead her case before the authorities. How she will handle the situation, is dependent on the persona of the union leadership and Julia. This might involve registering as a member of the union, which is not a big deal if she is able to extract her due from the management. The union can subsequently also help Julia in filing a legal suit against the management if nothing fruitful emerges out of their negotiations on the issue. iv. The recruitment process appears somewhat shady if we compare the promises with actual offers to her. Julia was lured into the company by a 'misleading' advertisement, but Julia had to suffer from the very beginning of her tenure with the company. She kept quite because, the company bosses kept dangling the stick of 'reprimand' for 'not following employer's orders', which was the prime reason for Julia to become submissive and not complain about the injustice being done to her. Read More