Issues on Legal Correspondence - Essay Example

162451     Mr E Driver 123 Any Street Borset Borsetshire Dear Sir In response to your request regarding any relevant action which you might be ableto pursue against the Borsetshire Bus Company in respect of your recent dismissal from their employment I have examined the points you have made and am now in a position to advise you. From the information that you have supplied it would appear that although there have been other incidents where your supervisor has had cause to speak to you concerning your lateness to work there has never been any formal disciplinary action taken against you. This would lead to the suggestion that the instigation of such action following the latest complaint has not been properly conducted as you have not been given the opportunity to amend your conduct in the workplace and improve your attendance times. In order to best advise you on this matter I have outlined below the relevant statutes which I believe would assist your claim against the Bus Company and have outlined case authority which could be relied on to support your claim. The Employment Act 2002 (Dispute Resolutions) Regulations 2004 Under the above Regulation employers now have a direct requirement to ensure that they have a disciplinary procedure in place that meets the requirements as stipulated. These Regulations require the employer to adhere to the disciplinary procedures before an employee can be dismissed. There are 2 procedures that can be applied; the standard procedure and the modified procedure. These have been incorporated into the Employment Act 2002. Schedule II of the Employment Act 2002 details the procedures both for the modified route and the standard procedure and is defined as the dismissal and disciplinary procedure. The employer must set out in writing the alleged conduct of the employee or the characteristics or other circumstances which has led the employer to contemplate such action. The employer is under a duty to send the statement or a copy of it to the employee and invite them to attend a meeting to discuss the matter. The employee must have had a reasonable opportunity to consider his response to the information given. It is the responsibility of the employee to ensure that he attends the meeting. Directly following the meeting the employer has a duty to notify the employee of the decision they have made and they should inform the employee at this point of his right to appeal if he disagrees with the decision. Lodging an appeal is the responsibility of the employee, and he is under a duty to notify his employer of his intention to appeal. Once notified the employer should arrange a further meeting between himself and the employee. All steps must be taken by the employee to ensure that he attends this meeting. An employer is not under a duty to allow the employee to remain employed whilst the meeting has not taken place and is at liberty to dismiss the employee before the meeting. As with before the employer must notify the employee of their decision once the meeting has taken place. Reasons for dismissal that can be regarded as fair When dismissing an employee on the grounds of capability or qualifications the employer is under a duty to consult with the employee and any line manager or supervisor responsible for that employee. The disciplinary procedures mentioned above would also have to be adhered to in order to give the employee every opportunity to reach the required standard. A dismissal for inappropriate behaviour requires the employer to follow the company’s disciplinary procedure to ensure that all efforts have been made to curb the behaviour of the employee. An outline of unreasonable behaviour should have been supplied to the employee in their contract of employment. The contract should lay down clearly the company policy. An employee should be reminded of this policy before the employer moves towards dismissing them. An explanation of how their behaviour has breached this policy should be given to the employee and they should be given an opportunity to alter their behaviour. If the employee continues to behave in the same manner despite the warning and the opportunity to amend their behaviour an employer will be able to dismiss them and is unlikely to face an allegation of unfair dismissal1. When a dismissal does not have to follow the disciplinary procedure An employer is entitled to dismiss an employee without following the disciplinary procedure if the conduct of the employee is such that dismissal should be instant. Within a contract of employment an employee should be told of the disciplinary procedure within that company and should have access to any document that refers to the rules of the company. The Employment Rights Act 1996 s86 deals with the notice requires to be given by an employer before they can dismiss an employee. The Act also reinforces the 2002 Act in respect of requiring the employer to give written notice to the employee stating the reasons for their dismissal and must outline their rights of appeal. Advice This would appear to be a breach of the employment contract as the correct disciplinary procedure does not appear to have been adhered to2. In Panama v Hackney LBC [2003] EWCA Civ 273 [2003] I.R.L.R. 278 the appeal tribunal found that the dismissal had been unfair as the applicant had not been given an opportunity to address the allegations made about her before she was dismissed. Having considered the information you have supplied to us it is my considered opinion that you may be able to substantiate a claim for unfair dismissal as you were not given an opportunity to amend your behaviour before the decision to dismiss was made3. Yours Faithfully A Lawyer Mr R Smith 1 Sleepy Close Borset Borsetshire Dear Sir With reference to your inquiry in relation to your threatened dismissal from BBC should you refuse the alternative employment offered in Middleshire I wish to advise you as follows. Employment Rights Act 1996 Under the Employment Rights Act 1996 s94 an employee has the right not to be dismissed unfairly4. Looking at your present situation it could be argued that as there was no mention in your contract of employment that your place of work might be varied at the discretion of your employers that any attempt to vary your place of work could amount to a breach of contract. I refer you to the case of Sibson v United Kingdom 14327/88 [1993] ECHR 18 (20 April 1993) where the plaintiff’s employers were attempting to make the plaintiff work at another depot owned by the company. In this particular case it was held that the company had within the terms of the contract incorporated the flexibility to move staff between branches and therefore the plaintiff could not uphold a claim for constructive dismissal in this instance. I note that there is no mention from yourself in respect of any such clause within your contract so it is therefore likely that your claim may well succeed should they decide to terminate your employment. There is a feasible argument that as this would involve relocation and a reduction in pay the actions of BBC amount to a constructive dismissal5 as they are making it impossible for you to continue your employment with them. Constructive dismissal occurs if you resign because your employer breaches the employment contract, by taking action such as cutting your pay, changing your working conditions, and so on, and so makes it impossible for you to continue working. I refer you to the case of Managers (Holborn) v Hohne [1977] I.R.L.R. 230 (1977) 12 I.T.R. 379 where the court held that the reduction in pay involved in the transfer amounted to a repudiation of her employment contract and held that dismissal on the grounds of refusing to take the lower pay offered would amount to constructive dismissal. I also feel that given your wife’s condition and the difficult time she is experiencing with the pregnancy that it might be viewed by the tribunal as unreasonable for BBC to expect you to relocate. Advice It is my concerned opinion that in this instance there is a strong possibility that a claim for constructive dismissal will succeed as the employer is in breach of the employment contract by reducing your pay6. Yours Sincerely A lawyer Mr T Total 234 Public House Road Borset Borsetshire Dear Sir With reference to your recent request for advice in respect of the offer of alternative employment following your recent conviction for a driving offence I wish to advise you as follows. The first point that needs to be made in this instance is consideration as to whether alternative employment has been offered to the employee until they are able to drive again. Where it is possible to offer the driver an office based role until he is entitled to drive again the company may find that if they dismiss the employee rather that offer them the office based role that the employee could have a case to argue for unfair dismissal. Obviously if a driver became banned from driving as a result of a criminal conviction for a driving offence the employer might be left with no alternative but to terminate their employment as the employee may well not be qualified to take on another role within the company. Where it is possible to offer the driver an office based role until he is entitled to drive again the company may find that if they dismiss the employee rather that offer them the office based role that the employee could have a case to argue for unfair dismissal. It is impossible to decide on such issues as to whether an employment tribunal would consider this unfair as they might be of the opinion that the employee’s demise is as a direct result of his own conduct. They could hold the opinion that the driver has deliberately made himself unemployable as a driver by getting himself banned from driving7. Your refusal of the alternative employment in this instance would mean that there can be no claim for unfair dismissal as you have not been officially dismissed. In Hudson v George Harrison Ltd Times, January 15, 2003 the court held that the applicants’ refusal of alternative employment meant that she could not be classed as unfairly dismissed as her employment status was of her own devise due to her refusal to accept alternative work. This would still be the case even though the new role would involve lesser pay. The company would be able to use the argument that you have placed yourself in this position by committing an offence and getting yourself banned from driving. The company could also avoid liability if they agree to offer you your old job back once the driving ban has been lifted. Yours Faithfully A Lawyer Read More