Relevant Portions of Employment Law - Coursework Example

?Introduction Carers in the UK are valued. There are provisions that that carers are en d to assistance if they need it, and that carers are entitled to a good pension if they are caring for a dependent more than 20 hours per week. Moreover, there are specific provisions that state that individuals who are carers are entitled to have flexible working schedules if they have good reason, and an employer cannot unreasonably deny this. There are also broad areas of employment law that forbid discrimination and harassment based upon certain aspects of an individual’s background or gender. The law, however, has not specifically designated that carers is a protected class when it comes to discrimination and harassment, which means that, presumably, an individual may still be fired if they need to take time off to care for a loved one. Nevertheless, in examining the law regarding employment, carers and flexible working schedules, it becomes clear that UK does value carers, therefore a law forbidding just this kind of discrimination and harassment is probably just around the corner. This paper will explain the different areas of the law that are relevant to the issue of harassment and discrimination regarding carers, including broad employment law principles, carer law and flexible working law. Relevant portions of employment law Miss C. has an argument that she was harassed out of a job because she took time off to care for her severely disabled son. Harassment is unwanted conduct that “has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”1However, the Employment Equality Acts makes a distinction – harassment is unwanted conduct related to any of the discriminatory grounds. 2The discriminatory grounds are further defined as gender, marital status, family status, sexual orientation, religion, age, race, Traveller community and disability.3 Traveller community appears to refer to nomadic people. Thus far, according to the Employment Equality Acts 1998-2008, caring for a disabled person would not be considered to be a discriminatory ground for the purposes of establishing grounds for a harassment case. Another relevant area of employment law includes ascertaining whether or not there is a fair dismissal. Fair reasons for dismissal, according to the Employment Rights Act 1996 are dismissals that “a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do; b) relates to the conduct of the employee; ba) is retirement of the employee; c) is that the employee was redundant, or d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or made under an enactment.”4 In reviewing these reasons for a fair dismissal, the process of taking time off to care for a disabled dependent, such as a child or a parent, does not fit well into any of the categories. Taking time off does not have any bearing on the capabilities or qualifications of the employee performing the work that the employee does, does not relate to the employee’s conduct, nor does it mean that the employee could not continue to work in the position held without contravention or a duty or a restriction. Therefore, under the Employment Rights Act 1996 § 98(2), firing an individual for caring for a dependent would not be considered one of the categories for fair dismissal. If Miss C is considered to be unfairly dismissed, she may bring suit under the Unfair Dismissals Act 1977, which states that if there is an unfair dismissal, “the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances.”5 The Act then goes on to say that the employee is entitled to re-instatement or re-engagement of his prior position, or payment of a sum of money. What's more, the dismissal would be considered unfair if unless there were substantial grounds justifying the dismissal. Miss C can argue that, if the employer violate procedure in firing her that there was not substantial grounds for firing him, which means that he can seek redress under the Unfair Dismissal Act. Miss C was also entitled to notice before being terminated. The amount of notice is contingent upon how long the employee had worked for the employer. Under the Employment Rights Act 1996, if an employee had worked for an employer between one month and one year, she is entitled to one week notice; two years, two weeks notice; and so on, up to a maximum of 12 weeks notice.6 The facts do not indicate how much notice Miss C was given before she was terminated, but, it is safe to say that if she was not given proper notice, she would also have grounds for complaint on this basis as well. Relevant law regarding carers It is also important to review the relevant law regarding carers, as these laws demonstrate the commitment that the UK has towards carers. This, in turn, would bolster the argument that the UK is moving towards protecting workers in the areas of employment discrimination. In addition to the above laws, the Care Quality Commission7 furthermore helps carers in the areas of finding relevant services. The first section regarding this area of the law is the section that caregivers have the right to request of the local authority whether they, the caregivers, have the ability to provide and continue care for the disabled person, or whether additional services are needed.8 A carer that is providing regular and substantial care to a dependent person would be eligible to ask for assistance under this Act. If they request an assessment, then the local authority has a duty to respond. In making this assessment, the practitioner should assess if the caring role is sustainable and what the risk is that the caring role may become unsustainable. The factors that should be looked at are autonomy, which assesses how free is the carer to choose the types of tasks that are performed and how much time is given to the carer's role; health and safety, which looks at how much the carer's health is in jeopardy by the role; managing daily routines, which means how much the carers can look after their own daily affairs and routines while providing care; and involvement, which looks at how much the carers are free to pursue employment, relationships, interests and other commitments while providing the care.9 If the majority of these factors are present, then the risk would be critical or substantial, and the local authority has a duty to seriously consider whether the carers get service. Another provision is that carers are eligible to apply for a grant from the Community Care Act 1996. Under this Act, the caregivers can apply for a grant that will be supplied instead of services. They would thus be able to have direct payment for services.10 Moreover, there are provisions in place to make sure that carers receive a good pension if they are a caregiver giving care to somebody more than 20 hours per week and is caring for one or more persons who would be considered to be disabled. 11 Relevant Law Regarding Employment and Carers While the above describes the law regarding employment discrimination, unfair dismissal, and carers support, there are also relevant areas of the law that deal directly with the rights of carers when it comes to employment matters. One of the most important of these laws is the Employment Rights Act § 57(a). According to this section of the Employment Rights Act, an employee is entitled to time off of work, if it is necessary to assist a dependent who has taken ill, has just given birth or is assaulted or injured; if it is necessary to make provisions to care for an injured or ill dependent; if it is necessary to deal with a dependent’s death; if there has been an unexpected arrangement disruption or terminate of care for a dependent; or it is necessary to deal with an incident that happened in a school where the child of the employee attends.12 The employee’s duty under this section is that the employee must give notice to the employer as soon as possible, and must tell the employer how long he or she is going to be gone.13 Moreover, for the purpose of this statute, a dependent is considered to be a spouse; a child; a parent; a person who lives in the same household who is not an employee, tenant lodger or boarder.14 Other examples of dependents include individuals who rely upon the employee when that individual is ill or injured, or individuals who rely upon the employee making provisions for the individual when the individual is ill or injured.15 Illness also includes mental illness.16 Another relevant portion of the Employment Rights Act is Section 80F, which was expanded in the Employment Act 2000,17 and the Work and Families Act 200618 This section states that an employee may apply to the employer for a change in conditions and terms of his employment if the change relates to the hours and times that he or she needs to work if he or she needs to take this time off of work because the need to care for somebody who is “(i)a child who has not reached the§ prescribed age or falls within a prescribed description and in respect of whom (in either case) the employee satisfies prescribed conditions as to relationship, or (ii)a person aged 18 or over who falls within a prescribed description and in respect of whom the employee satisfies prescribed conditions as to relationship.” 19 In this case “prescribed age” means 18 or younger; and “prescribed description” means how the Secretary of State prescribes the description.20 The employee’s duties under this statute are that he or she must make application to the employer; specify the requested change and for how long the change will last; explain what effect the change will have on the employer, and how the employee plans to deal with this; and how the dependent relationship fits in with the definition provided by the statute.21 Further, the employee may not make another application to work a different schedule from 12 months from the first application. 22 Employers also have certain duties with regards to flexible working schedule requests.23 The first obligation is that the employer must deal with the application made by the employee according to the regulations made by the Secretary of State and can only refuse the application if one or more of the following grounds apply: the request would put a burden of additional costs on the employer; the request would be detrimental to meet customer demand; there is an inability to allocate the work among the existing staff; there would be a detrimental impact on quality; there would be a detrimental impact on performance; there is not enough work during the periods that the employee wants to work; there are planned structural changes; and any other grounds put forth by the Secretary of State.24 The employer also must hold a meeting with the employee about the request within 28 days of the request being made; must tell the employee within 14 days after the meeting the decision of the employer about the request; if the request is denied, the employer must give the employee reason.25 If the employee is dissatisfied with the decision, then the employee has a right to appeal the decision.26 The employer must also provide the employee information about the appeal procedure and notice procedure.27 A meeting about the appeal must be held within fourteen days of the filing of the appeal, and the employer must give the employee the final decision within fourteen days of this meeting, and must give an adequate explanation to the employee as to why there was an adverse decision.28 The employee also has a right to be at these meetings.29 The case that deals with these provisions is Commotion Ltd. v. Rutty.30 In this case, the plaintiff was forced to resign because she had requested from her employer permission to work a three day week because she had to care for her granddaughter, Jasmine. Her employer refused to accommodate this request repeatedly, stating that they had an interest in creating a team spirit by having the work day be uniform for all employees. The tribunal found that the employer breached the duty to the employee under the relevant provisions in the Employment Rights Act. The reasons for this is that the employer did not give a good reason to the employee for the refusal, stating that these requests were “off the cuff and made without research.” 31 Another case that deal with similar matters is Coleman v., Attridge.32 In this case, the plaintiff brought suit against her employer for unfair dismissal because she had to take time off work to care for her disabled child. Heard in front of the European Court of Justice, the tribunal found that she was discriminated against, and that discrimination cases can be brought not just by the disabled person, but by individuals who suffer discrimination due to being related to or connected to a disabled person.33 What these statutes and case show is that the employee has a right to go part-time if this is necessary to care for a dependent, and an employer has to at least consider the request in a serious manner. Specifically, an employer must give the employee a right to appeal an adverse decision, and the employer must give the employee a good reason for not agreeing with the decision. Good reasons have to do with business adverse effects, such as the fact that the work cannot be allocated among other employees, that allowing the employee to go part-time would affect sales or customer service, and that the employee’s job is one that can only be done by the employee. The employer in Commotion did not take the employee’s request for part-time status seriously, as evidenced by the fact that the only reason they gave to the employee for the refusal to let her go part-time was that they wanted to create a good team spirit by having a uniform work day. There was no other business decision, which showed that the employer in that case either was not aware of the specific provisions of the relevant portion of the Employment Rights Act or they just didn’t care. Likewise, the employer in Attridge showed that they did not care about the provisions either, and they discriminated against the plaintiff, thus making new law that stated that discrimination extends to family of disabled people, and others connected to disabled people. What is striking about these provisions is that it seems that the employer has the burden of proof instead of the employee. What this means is that the employer must show why a request has been turned down, and that this seems to be almost more important than the employee showing why the request is necessary. In turn, what these provisions mean is that UK law is moving towards greater protection of individuals who are needed at home to care for a dependent. If this were not the case, then employers would have more leeway to go ahead and refuse requests to go part-time. Moreover, employees have a lot of protection under these laws – they have a right to an appeal, and to be told, with adequate justification, why the request would be refused. These provisions show great concern for caregivers. Conclusion Employees have a lot of protection under UK law under a number of different provisions. Employees may bring a cause of action for unfair dismissal if they are dismissed for a reason other than those provided for in the statute regarding this. They are protected from harassment and discrimination based upon a number of different aspects that include harassment and discrimination based upon disability, gender, race and national origin. These are basic elements of employment law that show that employees are valued by these statutes, and that employers cannot act unreasonably. At the same time, UK law has moved towards valuing caregivers. This is demonstrated by the fact that there have been a number of different provisions and laws that protect caregivers and give them special rights, such as the right to assistance if they show that this is needed and a right to receive grants to help them in caring, and allowing carers to have a decent pension. These two aspects of law came together in the relevant provisions of the Employment Rights Act. These provisions show that carers are valued and that they cannot be unreasonably denied a request to work part-time. When you put all the relevant laws together – the basic employment laws regarding harassment and discrimination, the laws regarding providing assistance to carers and the employment rights act that specifically gives rights to carers when it comes to employees wishing to work part-time so that they can care for a dependent - it makes sense that the next step in the UK legal system would be that discrimination and harassment based upon the need to care for a dependent would be specifically verboten and it would seem that case law and the legislature will evolve in the direction of doing so. Sources Used Care Quality Commission. Available at: www.healthcarecommission.org.uk. Carers and Disabled Children Act 2000 Coleman v. Attridge (2008) C-303/06 Commotion Ltd. v. Rutty [2006] IRLR. 171 Community Care Act 1996 Employment Act 2000 Employment Equality Acts 1998-2008 Employment Rights Act 1996 The Equal Status Acts 2000 to 2004 Pension Reform Fact Sheet. Available at: http://www.dwp.gov.uk/docs/fs-carers- credit.pdf Unfair Dismissals Act 1977 Work and Families Act 2006 Read More