The Legal Arguments to Be Used in Support of Emily Worths Case - Essay Example

Emily Worth’s Case The legal arguments to be used in support of Emily Worth’s case Overview The United Kingdom operates a highly liberal labour market with minimum legislative and administrative interventions with employment rights shaped around the common law of contract. Specialist employment tribunals are empowered to hear almost all kinds of individual disputes integrating elements in civil court structure (Federation of European Employers, 2006). Chapter 8 of the Employment Rights Act 1998 states that it was, “An Act to rename industrial tribunals and amend the law relating to those tribunals; to amend the law relating to dismissal procedures agreements and other alternative methods of resolving disputes about employment rights; to provide for the adjustment of awards of compensation for unfair dismissal in cases where no use is made of internal procedures for appealing against dismissal; to make provision about cases involving both unfair dismissal and disability discrimination; and for connected purposes,” (Crown Copyright. 1998). In Emily Worth’s case, a meeting was set on 17 July 2006, of which Worth was informed about in July 16, 2006. She was later handed a letter hours prior to the meeting signed by Head Teacher Pat Butcher alleging charges against Emily of “Abandoning your class, swearing and using abusive language, [and] ”refusal to co-operate with the legitimate management decisions of the Head Teacher and behaving in an unreasonable and unprofessional manner.” The letter also stated that the alleged offences were if proven would amount to gross misconduct. Each act of misconduct as provided for by the Employment Act 2002 follows a certain procedure: 1. Oral Warning 2. First Written Warning 3. Final Written Warning and 4. Dismissal (Employment Law Solicitors, 2006.) In fact, gross misconduct which may merit instant dismissal requires acts such as failure to comply with reasonable and lawful instructions, theft, sale or consumption of alcohol, physical assault, breach of duty of confidentiality, sexual or racial harassment, fighting, and willful damage to an employers property, or attending work under the influence of prohibited drugs. The mentioned acts may not be exclusive but it has always been lawful that a proper investigation must be conducted of which the employees may also appeal. Solicitor Royden (2006) listed below acts that may merit immediate dismissal as: the employee is unable or unqualified to do the job in hand (e.g. long term sickness absence) the employee’s conduct is unsatisfactory (e.g. poor attendance) the employee is legally prevented from continuing to carry out their job (e.g. a van driver who loses their license) redundancy (e.g. due to closure of premises) some other substantial reason (e.g. a refusal to agree to a necessary and reasonable change in terms and conditions of employment) (Royden, 2006), Consequently, Emily Worth was dismissed by the school based on the following grounds: 1. Abandoning classes; 2. Swearing and using abusive language; 3. Physically barring the exit of a member of staff; and 4. Refusing to co-operate with the acting Head Teacher. Emily’s case will have to be evaluated based on applicable law, rules and regulations and jurisprudence. In this matter, the disciplinary hearing has to prove that due process has been undertaken prior to dismissal of Emily Worth. There are two ways to show that a dismissal was not unfair, of which the employer or its representative must have a valid reason for dismissing an employee or that they have acted reasonably in the circumstances in that an adequate investigation must have been conducted prior to dismissal. The employer or its representative was required to have taken the statutory minimum disciplinary procedure as required by law in order to dismiss the employee legally. The employer or its representative could have sent a written notice to Emily Worth stating the ground or conduct that led them to disciplinary action. It also may contain the reason why the employer has the ground to discipline Emily Worth. Obviously in the case of Worth, an investigation was not conducted prior to hearing. In fact, Worth was not at all formally notified about a hearing of which she could have at least prepared to give her defence. Secondly, in matters where the reason may be of weight, the employer or its representative could have suspended Worth prior to dismissal. She should be told about the reason of the suspension. If a staff or school officer filed a complaint against Emily Worth, a fair, unbiased and reasonable investigation should also have been conducted and copies of the result of the investigation should have been furnished to Worth. This could have been the first step of the statutory procedure. A meeting should have been arranged to discuss the issue against Emily Worth as the second step on the statutory procedure. The meeting should allow for adequate time for Emily Worth to prepare, and it should have taken place in a private place to avoid unnecessary interruptions. A proper investigation of which there must be an assigned investigator, a disciplinary hearing where an impartial chairman proceeds, and a notice to Emily Worth to contain the following (Outlaw.com, 2006): “full details of the allegations that have been made and why the conduct is not acceptable, what will be discussed at the hearing, including a clear indication that the hearing is a disciplinary hearing and that depending upon the outcome of the hearing, disciplinary action may follow; the date, time and place of the hearing; an offer to rearrange the date, time and place of the hearing if it is not suitable to the employee; details of who will be present and what their function will be, including details of who the company will be calling as witnesses; confirmation that the employee is entitled to be accompanied at the hearing by a fellow worker or trade union official; confirmation that if the employee intends to have fellow employees as witnesses, they will be given reasonable time off work to attend the hearing; any relevant evidence, including witness statements from company employees; and an assurance that no conclusions have been reached or will be reached until the hearing has taken place.” During the hearing, Worth must be informed by the chairman of the purpose of the hearing, identify all those in attendance, and then explain the allegation of misconduct. After this, the investigator will be asked by the chairman to state the case against Worth and may call the witnesses, if not maintain the witnesses confidential The investigator may explain contents of the presented documents. Worth may seek clarification, ask questions and present her side of the case and may also call her own witnesses and may also take this instance to ask an apology. Lastly, the chairman may ask what she needs to add or say. In the instance where Emily Worth was proven to have done a misconduct, then a disciplinary action may be justifiable and that the disciplinary action is proportionate to the misconduct, but reasonably, there has to be a first warning and final warning prior to dismissal. In an unfair dismissal case filed by Mr. Styles in “Mr Styles v London Borough of Southwark 2006”, the employment appeals tribunal found that there had been reasonable behaviour on the part of the employer as a head teacher of the school wrote to Southwark on a series of allegations against Mr. Styles as “threatening behaviour and intimidation, failing to do the job of a satisfactory standard, and failing to follow reasonable instructions,” (HRM Guide, 2006). Prior to the dismissal of Mr. Styles, a disciplinary hearing took place of which Mr. Styles have chosen not to present evidence nor have he chosen to call any witnesses. Argument to the First Ground As a teacher, or any employee for that matter, Emily is entitled to specific benefit of rest from work especially when one is in need of medical attention. This is a universally enshrined right of an individual in any jurisdiction. If one is entitled to rest or vacation, why not like Emily, who was at the time absent from class of because illness will be deprived of that right and eventually become one of the very reasons of her unfair dismissal? In any establishment where an employer-employee relationship exists, an employee is entitled to sick or vacation leaves. It is a question of why should a teacher like Emily be not excused form attending her classes when she needed medication after how many years of devoting her entire life to the very institution she served and a profession she most worked hard for. Argument to the Second Ground In our jurisdiction, one may be exempt from being penalized on something she was compelled to do though it may be punishable in law. This is a recognized exception to the rule when one is sufficiently provoked to commit an act even if it may be against his or her will. They may be wrong observing it on that plain event alone, yet reason and compassion calls for understanding her situation. Emily did not object to this charge using abusive language yet reason dictates that she was justified when she uttered such a language though unacceptable in that institution. Yet what happened was that she was provoked by the oppressive situation including her colleagues and the institution itself. Insults hurled against her person were sufficient justification for her to respond in that manner though may seem to be unacceptable. Argument to the Third Ground The incident of physically barring the exit of a staff does not show any intent from Emily that it was deliberate. There is not a single doubt that she intended to restrict one’s mobility. If there is no intent whatsoever on her part, this is a lame excuse to justify an oppressive decision to eject her out of the institution. Argument to the Fourth Ground Emily, though a subordinate to her Head Teacher, does not justify the latter’s dictate to accept the additional position requested of her to undertake. It is a basic principle in law that one cannot be compelled to work or render service against a person’s will. If one is pushed to accept an obligation to do, such will result to involuntary servitude, a situation which humanity strongly condemns. And by this principle, Emily should not be made to suffer the penalty of dismissal because she was unwilling to take the position. Furthermore, she refused to accept the position without any valid reason at all. She refused to do so because of health reasons. She cannot be dismissed for insubordination. Emily is better off not to claim race or religion discrimination as these were not stated directly or indirectly as one of the causes of her dismissal. She would have difficulty proving that she was discriminated upon on those grounds as these or any related actions on race and religion were not used as basis of gross misconduct allegations against her. (Word count: 1816) DAMAGES Since her dismissal was clearly without basis in law and jurisprudence and aggravated by malice and discrimination because of gender, she is entitled to actual, moral and exemplary damages. It is also her right to be reinstated since her dismissal was made without cause. For claims under £50,000, unfair dismissal involve a tribunal and are substantially cheaper, easier to bring of which an employer may find it easier to offer the employee some damages. The following must be present in order to win: have been employed at the time of dismissal (independent contractors etc. are not covered) have been employed for at least 12 months (unless making a claim for unfair dismissal relating to sex or race discrimination and a few minority cases) be under 65 (or the normal retirement age for that particular job) ordinarily work in the UK. make a claim within three months of dismissal In consideration of the length of service by Emily Worth, exceeding the one year period, she may also push for claim to an employment tribunal for unfair dismissal within three months of the date of dismissal. If Worth wins her case, she may choose among three remedies which are: 1. Re-instatement or getting back to her old job with the same terms and conditions 2. Re-engagement or change of job but of the same employer, or 3. Compensation. There are three potential remedies the tribunal may order: Re-instatement (into the same job) Re-engagement (into a similar job) Compensation Compensation is by far the most common in practice by employers. There are two elements to the amount of compensation: Basic Award Compensatory Award Chapter 8 of the Employment Rights (Dspute resolution) Act 1998, Part III under Awards Compensation states that: 127A. - (1) Where in a case in which an award of compensation for unfair dismissal falls to be made under section 112(4) or 117(3)(a) the tribunal finds that-   (a) the employer provided a procedure for appealing against dismissal, and   (b) the complainant was, at the time of the dismissal or within a reasonable period afterwards, given written notice stating that the employer provided the procedure and including details of it, but   (c) the complainant did not appeal against the dismissal under the procedure (otherwise than because the employer prevented him from doing so),   the tribunal shall reduce the compensatory award included in the award of compensation for unfair dismissal by such amount (if any) as it considers just and equitable.         (2) Where in a case in which an award of compensation for unfair dismissal falls to be made under section 112(4) or 117(3)(a) the tribunal finds that-     (a) the employer provided a procedure for appealing against dismissal, but   (b) the employer prevented the complainant from appealing against the dismissal under the procedure,   the award of compensation for unfair dismissal shall include a supplementary award of such amount (if any) as the tribunal considers just and equitable.         (3) In determining the amount of a reduction under subsection (1) or a supplementary award under subsection (2) the tribunal shall have regard to all the circumstances of the case, including in particular the chances that an appeal under the procedure provided by the employer would have been successful.         (4) The amount of such a reduction or supplementary award shall not exceed the amount of two weeks pay." (Crown Copyright, 1998). In the case of Emily Worth, she can claim compensation for all salaries equivalent to £36,000 per annum and benefits since her dismissal until the time she was reinstated. Supplementary award which shall be deemed by the tribunal may also apply of which stated shall be equivalent or not to exceed the amount of two weeks pay. (Word count: 623) Reference: Federation of European Employers. “National Labour Laws.” FedEE Services Ltd 2002 Last updated 02 November 2004. Accessed November 2006 Crown Copyright. 1998. “Employment Rights (Dispute Resolution) Act 1998. Chapter 8. Department of Trade and Industry. “Employmant Matters.” 2006. From http://www.dti.gov.uk/employment/employment-legislation/employment-rights/index.html Employment Law Solicitors. “The Employment Law Solicitors Disciplinary Procedures.” 2006. From http://www.theemploymentlawsolicitors.co.uk/disciplinaryprocedures.php HRM Guide. “May 30 2006 Employment Law Enews.” May 30, 2006. From http://www.hrmguide.co.uk/hrm/steele/may06-3.htm Out-law.com. “Disciplining an Employee.” Prinset Manson. June 2005. From http://www.out-law.com/page-5801-theme=hivis Royden, David. “Dismissal Procedures.” 2006 from http://www.roydens.co.uk/content32.htm Read More