Harrington Mental HealthTrust - Essay Example

? PROBLEM QUESTION: LAW BY DUE I have been advised to examine the issue of a home health care nurse who is employed through an agency, Nursebank, which pays her salary. Through the assignment she is assigned to Harrington Mental HealthTrust two days each week where she acts in the capacity of an employee of Harrington, receiving reviews and attending staff meetings. She would like to leave the employment of Nursebank and be employed four days a week through Harrington as a direct employee, receiving all of the benefits that Harrington employees receive, such as raises commensurate with performance, insurance benefits, and company opportunity for advancement. Jessica knows through other employees that a position will be open very soon but has been advised by Harrington that they ‘do not hire agency workers.’ Rachel has sought advice due to the fact that she is pregnant and considering employment options. She would like to know what her rights are to maternity leave and if there are any conditions allowing flexible scheduling before she applies for a position through Kent University as a part time accountant. It is very likely that Jessica is currently working under a ‘contract for service.’ This means that as an agency employee she is entitled to certain rights, those rights consisting of breaks during a work assignment, minimum wage, paid holidays, no unlawful deductions from pay (DirectGov), protection under the health and safety laws and freedom from discrimination in any manner. Jessica states that Nursebank has been bullying her and she would like to become employed four days a week directly with Harrington. Harrington does have an upcoming position but Jessica was told that they do not hire ‘agency workers.’ Jessica needs advice as to if this is against the discrimination policies that are legally in place. There are two factors here to consider and examine when reviewing Jessica’s complaints. The issue of Jessica’s bullying should first be explored. Bullying in the workplace can be described as being constantly picked on, ridiculed, humiliated, being overworked in comparison to other workers (Direct Gov), passed over for promotions and being threatened with dismissal. Jessica did not specify exactly how she is being bullied but these examples are not all-inclusive. Bullying is protected against through harassment and discrimination laws. Employers can be held liable for these behaviors through legal proceedings. It is important to advise Jessica that the first step she should take is to report the bullying. Review Nursebanks policies and procedures for dealing with worker harassment and discrimination. It will become especially important that she has initially consulted and followed company procedure for reporting these actions should Jessica want to file a grievance against Nursebank. The ACAS statutory code of practice on grievance and discipline is issued under section 199 of the ‘Trade Union and Labor Relations Act of 1992’ (TSO). This sets out to establish guidelines for policy and procedure involved in grievances though the code does not necessarily need be followed exact but the employment tribunal will consider this code strongly in any cases brought up. Jessica should expect Nursebank to act promptly and consistently in investigating her complaints. Jessica has the right to be represented by her trade union, if she has one, or anyone she should use during any meetings or discussions or formal talks regarding her complaint. If the decision that the company makes in dealing with Jessica’s issue of being bullied does not resolve the issue she can then proceed further and appeal the decision. Legal actions can be taken if there is no relief from the claim, though I would advise that Jessica ensure she has done everything possible with the grievance and appeal process so that should she need to file a suit against Nursebank she will have sufficient evidence that they have been negligent or libel. Mediation by a third party may become necessary and is a possibility, a third party being impartial can be beneficial to individual and company. Arbitration is different in that arbitrators make the decision for the company, impartially and with the goal of being satisfactory to both parties while ensuring that discrimination and harassment laws are followed. Should there be no resolution a claim can be made to the employment tribunal. In advising in regards to Harrington refusing to hire agency employee’s we refer to discrimination and harassment laws in place also. Company’s should have policy’s in place that require them to avoid discrimination in the recruiting process and to use diversity in ensuring their organizations are well balanced and do not show preference in factors such as age, nationality or sex. This issue is more difficult to advice on due to the fact that in some instances if a position requires something specific, such as a job with an Italian theme wanting to hire and Italian then it is not considered discrimination. That is not the particular case here. It is possible that the agency has contracts with those assignments it sends it workers for employment stating specifically that no offer of employment will be given to the agency’s’ employees in an attempt to cause them to leave the agency. This rationale is acceptable and allowed in agency/facility relationships because were the facility to do this with any individual that they wanted to hire directly the agency would suffer undue or unnecessary loss of valuable human resources. Usually an agency will have an agreement stating that should the facility want to hire an employee directly a transfer fee can be paid to the agency (Business Link Gov). Were Jessica to leave the employment of the agency before applying for a position with Harrington she should stand the same chance of being hired as any other individual. If she continues to not be hired despite open positions for which she is best qualified for then she may wish to take action and file a complaint of recruitment or hiring discrimination. The Agency Workers Directives came into effect on October 1, 2011 implementing several new benefits for agency employees and packaged within the new Equality Act of 2011 (ACAS). This might provide Jessica with some valuable information in regards to her position and cause her to consider changing her mind. As of October after twelve weeks agencies must provide workers with the full pay that they would receive if they were employed by the company directly. She would also be eligible for working time rights. This act was designed to give agency workers who had been on the job for twelve weeks equal treatment. Rachel’s situation involves pregnancy and she would like to know what employment rights she will have as well as policy on flexible schedules. Rachel will have four basic maternity rights; time off for maternity leave, paid time off for antenatal care, maternity pay benefits and protection from unfair treatment or dismissal (Direct Gov, Working When Pregnant). Though your employer can ask for evidence of your antenatal care all pregnant women are entitled to paid time off no matter how long they have been with one employer for antenatal care. These are any medical Doctor appointments that are necessary for mother and baby’s well-being. Proof is not required until after the first visit and then may be provided in the form of a Physician’s note or document on letterhead. Special health and safety precautions are also allowed during pregnancy to include whatever is required within reason such as limited lifting, bending or standing. Exposure to toxins and long work hours are also covered. It is considered sex discrimination and unlawful if you experience a reduction in your hours because you are pregnant, sudden poor staff reviews, or treating days off due to pregnancy with disciplinary action. Depending upon how far along Rachel’s is in her pregnancy she may be able to receive statutory maternity pay. She would need to be with Kent University for 26 weeks of her pregnancy, beginning work before her 15th week. She must also earn on average an amount which at least equals the lower earnings limit which applies on the Saturday at the end of your qualifying week (Direct Gov, Statutory Maternity Pay). The lower earnings limit is currently 102 per//week if the end of your qualifying week is in 2011-2012. This pay would pay her for the first six weeks at 90% of her earnings and for the remainder of the weeks ‘at the lower of either the standard rate of ?128.73, or 90 per cent of your average gross weekly earnings’. Rachel also asked about the availability of flexible scheduling or working. Any person may request the company provide them with flexible working but it does not become statutory until Rachel has been employed for 26 weeks before the request is made. After 26 weeks Rachel must also meet further guidelines, which Rachel will meet after the birth of her child, having a child under 17 that she is responsible for caring for. Flex time includes working from home if this is a possibility, part time working or compressed hours (Direct Gov, Different Types of Flexible Working). If this is an agency job that Rachel is considering then the Agency Worker’s Directive becomes important to this position, allowing her these same benefits after twelve weeks of employment. References ACAS 2011, Agency Workers, (Online) Available at (Accessed 15 December, 2011) Business Link Gov 2011, Prevent discrimination and value diversity, (Online) Available at http://www.businesslink.gov.uk/bdotg/action/detail?itemId=1073792193&r.l1=1073858787&r.l2=1073877851&r.l3=1074003268&r.s=sc&type=RESOURCES (Accessed December 15, 2011) Direct Gov 2011, Statutory Maternity Pay, (Online) Available at (Accessed December 15, 2011) Direct Gov 2011, Working When Pregnant, and (Online) Available at (Accessed December 15, 2011) DirectGov 2011, Bullying in the Workplace, (Online) Available at (Accessed 15 December, 2011). DirectGov 2011, Different Types of Flexible Working, (Online) Available at http://www.direct.gov.uk/en/Employment/Employees/Flexibleworking/DG_184872 Accessed December 15, 2011 DirectGov 2011, Employment, (Online) Available at (Accessed 15 December, 2011). http://www.direct.gov.uk/en/Parents/Moneyandworkentitlements/WorkAndFamilies/Pregnancyandmaternityrights/DG_10026556 The Stationary Office (TSO) 2011, Disciplinary and Grievance Procedures, (Online) Blackwell UK, Available at (Accessed December 15, 2011) Read More