Fair Reasons for Dismissal - Essay Example

Running head: Business Law Business Law: A Case Study s Introduction: Ethical issues can arisewhen there is a contradiction between the legal or cultural standards of the country and the culture and the policies of the organisation. "In the scenario the conflict arises ought a company to obey the laws of its home country, or should it follow the less stringent laws of the developing country in which it does business"(Farlex, Inc., 2005) Business ethics should integrate the universal core values such as honesty, trust, respect, and fairness into its policies, practices, and decision making. Most of the codes are designed to increase the professionalism of individual members by indicating those behaviours that are prohibited as well as those that are expected of them (Frankel, 1989). The fact that legislation is a catalyst for economic growth and development is well known. Differing economic, cultural and political circumstances abroad also suggest the need for a better understanding of employees with a broad context is important. Fortunately, the ability to study the implications of policies on economic growth abroad is expanding rapidly as a result of the emergence of global private equity markets and micro finance. International entrepreneur ship spans cultural boundaries and involves a variety of stakeholders, including the entrepreneur, investors and policy makers (Asel, 2003). "Social considerations must be given the same status as economic, financial and environmental concerns in a holistic approach. It is time for global thinking and local action. The implementation of the Core Labour Standards and the laws and regulations that give effect to them at national levels can be significantly enhanced if the capacities of national labour inspectorates are built up and strengthened. Labour inspectors have a crucial role to play because they are the only ones with the authority to directly access and impose changes in the workplace."(Albracht, 2005) The increased working hours pose several external costs to the employees and employers both. They give rise to different health problems such as heart problems, high blood pressure, gastrointestinal disorders, psychological wellbeing and circadian disruption. The resulting increase in sick leave makes the organisation bear the cost of the illness of employee. The external cost effect thus transfers to society in shape of increasing tax burden on taxpayers and on Government for the provision of more social care facilities (Dawson, McCulloch and Baker, 2001). But in order to compete internationally it is important to increase the working hours. As stated by Berry (2005) "Europe's productivity is lagging behind the US and Asia because inflexible labour laws are preventing companies restructuring and investing in new technologies, a report shows. A DTI-sponsored study, published to coincide with the UK's presidency of the EU, criticises member countries, particularly France, Germany, Spain and Italy, for not having the courage to reform labour laws. EU heads of state agreed a 10-year programme in 2000 to increase investment and make the EU "the most dynamic and competitive knowledge-based economy in the world". However, the DTI report said little progress has been made in achieving this goal. Companies in Europe have to pursue a policy of "creative destruction" to change the way they do business and learn from the "hire and fire" culture of the US to compete globally, the report said. At a conference key European players from business and government discussed the challenge of the future of information and communication technologies (ICT) policy. Viviane Reding, EU commissioner for information society and media, said many workers were concerned about their jobs and the EU would only strengthen economic growth by investing in ICT and abolishing "superfluous regulation" Although the hire and fire culture seems an easy way of achieving economic goals but the change in the policies regarding the employment can adversely effected the ties between Government and people. Fair Reasons for Dismissal "In a complaint of unfair dismissal (or unfair redundancy or unfair constructive dismissal), the burden of proof is initially on the claimant (the employee) to establish that there was a dismissal. The respondent (the employer) then has to show that the dismissal was for a reason which is capable of being fair and must relate to the employee's 1. conduct 2. capability 3. redundancy 4. statutory ban 5. having reached retirement age (from 1st October 2006) 6. or "some other substantial reason" (Wikipedia, 2007) In order to avoid the strict policies and rigid laws most of the companies are considering the option of outsourcing so that they can avoid the strict laws governing how they hire and fire native citizens. The trend will give rise to unemployment rate, which will increase the anti foreigners, emotions. These trends will inevitably result in shape of relaxation in labour laws to increase the no. of native employment. However the Governments of the member states should avoid these clashes of cultures by keeping a balance in adopting the new policies and blending them with the existing policies in a way not to harm the rights of the native workers. This will help in preserving the European identity and improved economic conditions of the region. Since it is according to the EU legislation that the member countries can re apply the national measures, which have been stopped due to the EU legislation in case of serious problem threat from the labour market. The member country will have to ask the Commission and the Commission will decide about which of the restrictions can be imposed and for what time period. The decision should also be required to be passed by a qualified majority in order to amended or annulled. Solutions: In the following section we will present procedures should the HR function employ to ensure that their organisations comply with the law. According to Saari and Judge (2004) different employees have different attitudes. Different people have varying perspectives on their jobs or careers. Even how one may view his or her organization may be different from another person (Saari and Judge 2004). This attitude has been studied time and again by numerous researchers and experts. One specific aspect which is often connected to employees' attitudes is the disciplinary procedure adopted by the organisation. An employee contract is an important document, which is the basis of the relationship between the employee and the employer. A contract is made between both the parties when the employee agrees to work according to certain conditions offered by the employer. The contract contains all the details related to the scope of job and the benefits the employee will enjoy being on job. Some of the rights are recommended by the Government and are imposed on the employers by law. Some of the laws are implemented with the passing time. One such law enables the employee to undertake claims to an Employment Tribunal after the service of a year in case of unjustified dismissal of the employee from the job. It is better to undertake the agreement in written form although there is no legal obligation for the contract to be necessarily in written form but "the following details must be included in the written statement: the employer's name the employee's name the job title or a brief job description the date employment began(9) the place of work and the address of the employer the amount of pay and the interval between payments hours of work holiday pay entitlement sick pay arrangements pension arrangements notice periods where the employment is not permanent, the period it is expected to continue where the employment is for a fixed term, the date when it is to end grievance and appeal arrangements disciplinary rules and any disciplinary or dismissal procedures (as a minimum these should comply with the statutory procedures) any collective agreements which directly affect the terms and conditions where the person is required to work outside the UK for more than one month: the period he/she is to do so; the currency in which salary will be paid; any additional remuneration payable by reason of working outside the UK; and any terms and conditions relating to his/her return to the UK." (acas) Employers should get the signature of the employee on the copy of the contract or the handbook in order to make it sure that the employees have read and understood the regulations and he/she will comply the rules and regulations. Employees should also pay particular attention to disciplinary policies. Clearly drafted work rules that are adhered to consistently are an important component of an employer's disciplinary policy. Such work rules can be used to defend against unemployment compensation claims as well as discrimination and wrongful discharge claims. Another important concept, which plays an important role in the relation ship of employee and the employer, is the psychological contracts. Rousseau has done the most important and modernised research in the field of psychological contracts. She has transformed the concept and carried out empirical research to clarify its nature. Schien defines psychological contracts as "unwritten set of expectations operating at all times between every member of an organisation and the various managers and others in that organisation". Rousseau does not keeps the things till expectations she defines it further and states that what is involved are "promissory and reciprocal obligations" although they are not included in the formal contract of employment (Robinson and Rousseau, 1994; italics ours). The commitments about the future behaviour of the organisation are related to some desired actions of individuals. Rousseau states that these promises are not made by the organisations but are perceived by the individual about the future behaviour of the organisation. The nature of these promises is subjective resulting due to the interpretation of the actions of organisation. When a person starts serving an organisation he enters into a relationship with the organisation. Any particular psychological contract will contain both transactional and relational elements, but in differing amounts. As will be seen, the nature of this balance, and changes to it, has considerable effects. It is often argued that the psychological contract, influence the relationship between the employee and the organisation, although the effect will not be significantly apparent. Robinson et al. (1994), for example, found that employees experiencing contract violation are more likely to report having a transactional psychological contract with their employing organisation. Robinson et al. (1994) found that the violations of the psychological contract adversely affect the loyalty of the employees towards their employers. The employment law of UK provides the employees with the right of complain to the Tribunal in case of unfair dismissal. The law is applicable to the employees who have one year of continuous service. In some cases such as participation in trade union activities, for being the election candidate, statutory right assertion by the employee, emphasising the need of action on health and safety grounds, because of pregnancy or childbirth or taking parental leave no service duration is required. Employees have the right to receive one-week notification before dismissal after one-year service, two weeks notification after two years service and additional one week per year of the job. Disciplining employees is not an easy job. No organisation can survive without the proper discipline process in the organisation. Confrontation is not welcomed in most of the organisations. Mistakes in the disciplinary process can lead to legal problems. Disciplining employees requires that the employees and company comply with legal requirements and with organisation's policy and procedure. A disciplinary process undertaken effectively can lead to improved working conditions and productivity level and help to reduce the chances of conflict between the employee and the employer. Justice should be taken into consideration while implementing the disciplinary procedure in the organisation. There should be no discrimination between the legally protected and not protected classes. Practising inconsistent discipline measures can lead to discrimination complaints. Most of the companies provide the employees with the handbooks, which have major details about the company's policies and discipline procedures and describe the duties of the employees. Through the effective use of handbook the policies of the firm can effectively communicated with the employees. It is an important instrument, which makes sure the alignment of firm's disciplinary policies with the employment laws. Disciplinary and Grievance procedure: A three-step grievance and disciplinary procedure regulations should be undertaken while dealing with the matters such as dismissal and reallocation of the duties after a long absence. The three steps include the issuance of letter of information by the employer in the case of any disciplinary action on the other hand the employee should also send a letter of information to the employer in case of the grievance process by the employee. Secondly a meeting should be arranged and time should be given to both the parties for the preparation. The employer should inform the employee about their rights to appeal. Third step is the arrangement of appeal meeting if required by the employees. The management of the organisation can play a significant role in strengthening the discipline in the employees of the organisation. It is also important to promote, monitor and enforce occupational safety and health in the work environment. In order to achieve these goals the management of organisation should establish a strategy of health & safety culture. To make sure the imposition of the directives for labour betterment the governments should carry on the labour inspection processes with in their states. The governments should appoint different agencies which should investigate all the labour laws which act as an obstacle in the easy movement of labour with in EU member countries and on the other hand point out the policies which will affect the rights of the native employees of that country. A system to monitor economic progress of the country should also be establish, which allows the comparative analysis with other countries and pinpointing the strategic weaknesses. These agencies should also facilitate dialogues between all the stakeholders in order to play effective role in the progress of the country while keeping balance in adopting different policies. These agencies should also play a role of bridge between the employers and employees in order to solve their problems without effecting any ones rights. References Acas, The employment contract, available at http://www.acas.org.uk/index.aspxarticleid=928 Albracht, G. (2005). Unity Beyond Differences: The need for an integrated Labour Inspection Systems (ILIS), Co-ordinator of Labour Inspection Systems, ILO, Geneva Asel, P. (2003). International Entrepreneur ship Course Description. Available at http://icp.gmu.edu/course/syllabi/03fa/ITRN769-001.pdf. Berry, M., (2005). Inflexible labour laws put EU third in productivity league, PersonnelToday.com, 07 September 2005, http://www.personneltoday.com/Articles/2005/09/07/31508/Inflexible+labour+laws+put+EU+third+in+productivity.htm Dawson, Drew, McCullock, Kirsty and Baker, Angela (2001) Extended Working Hours in Australia: Counting the Costs, Report Commissioned by the Department of Industrial Relations, Adelaide, Centre for Sleep Research, University of South Australia. http://www.ir.qld.gov.au/reports&submissions/workinghours/index.htm Farlex, Inc., (2005). Business ethics: The Free Dictionary, available at http://encyclopedia.thefreedictionary.com/business+ethics Frankel, M.S., 1989. Professional codes: why, how, and with what impact Journal of Business Ethics 8, pp. 109115. Robinson, S.L., Kratz, M.S., Rousseau, D.M. (1994), "Changing obligations and the psychological contract: a longitudinal study", Academy of Management Journal, Vol. 37 pp.137-52. Rousseau, D.M. (1990), "New hire perceptions of their own and their employer's obligations: a study of psychological contracts", Journal of Organisational Behaviour, Vol. 11 pp.389-400. Saari, L.M. and Judge, T.A. (2004). Employee attitudes and job satisfaction. Human Resource Management, 43(4), 395-407 Wikipedia, (2008). British Labour Law, available from http://en.wikipedia.org/wiki/British_labour_law Read More