Employment Law Issues - Assignment Example

Employment Law Employment Law Scenario 6 6.2) In this scenario, Paul got sacked for disorderly conduct which involved being drunk while on duty and punching his floor manager. Having reported for duty drunk one afternoon, he was rightfully reprimanded by his floor manager about the incident. Essentially, punching the floor manager who was legally carrying out his duty constitutes unprovoked assault while working while drunk and swearing constitute gross misconduct, which resulted in his instant dismissal without notice. From this perspective, this section will explain the course of action the organisation should have taken to comply with UK law and procedure as well as recommend the most appropriate course of action that can be taken after the dismissal. According to UK Employment Law, the circumstances surrounding a dismissal will determine whether is fair or unfair and the procedure employers must follow when dismissing employees depends on the date of the dismissal (BIS, 2013). To comply with the UK law, the employer should follow the procedures stipulated by the Advisory, Conciliation and Arbitration Service (Acas) Code of Practice on disciplinary and grievance procedures. In Paul’s case, although the employer may have had justified grounds to dismiss him, the procedures were not followed from various perspectives. Most significantly, he was not given notice or allowed a disciplinary hearing. The requirements for fair dismissal include the capability (or lack of) the employee to work, their conduct, redundancy and circumstances that prevent them from conducting their job legally, such as the loss of a driving license by a driver. To comply with the UK law and specifically the Acas Code, the employer and the employee must have acted consistently whereby necessary investigations needed to be carried out to establish the case’s facts. Legally, he could have been dismissed without notice if he was in his first month of employment, if his contract indicated so or if he had conducted himself in a manner that undermined the confidence and trust of the employer. However, Paul had worked at the department store for four years on a full-time basis yet he was instantaneously dismissed, which means the employer did not comply with UK law. It is necessary that the dismissal decision and procedure are fair even in cases where the employer has a justifiable reason for the dismissal. To comply, the first step should have been sending a letter that pointed out the problem and an indication of the consideration for dismissal or disciplinary action (Citizens Advice, 2015). In the UK, it is legally required that once an employer has contacted an employee in writing, a meeting should be arranged at a reasonable time and appropriate place for the purpose of discussing the problem. Paul was instantly dismissed without notice for gross misconduct. Further, it is not indicated whether he was given pay in lieu of notice. In this case, the summary dismissal may be termed as procedurally unfair and hence, does not comply with UK law. Unless the contract states otherwise, the employer should have suspended and remained on full pay to allow for investigation into the circumstances (OGL, 2015a). As the Acas Code stipulates, it is imperative to promptly carry out the necessary investigations regarding potential disciplinary issues. In this misconduct case, it would have been recommendable for different people to carry out investigations and conduct disciplinary hearings. In the meeting to discuss the problem, the employer would have been required to explain the complaint they had against Paul and go through any evidence collected. On his part, the employee should also be allowed to present their argument and respond to any allegations brought against them and also afforded reasonable opportunity to call witnesses, present their evidence and ask questions. More importantly, the employer should also have allowed the employee to be accompanied by either a colleague or representative of the trade union to the meeting. It is the statutory right of the employee to be accompanied where the disciplinary meeting is likely to result in the issuance of a formal warning, any form of disciplinary action or appeal hearings (White v Bristol Rugby Ltd, 2002). Basically, the key function of the companion is to facilitate a discussion that is not based on prejudice and he should be given the opportunity to sum up the case of the employee and address the meeting. He should further be allowed to confer with the employee and respond to the views expressed during the meeting on his behalf but, however, it is imperative to note that the companion does not bear the right to answer questions on the behalf of the employee. After the meeting, the employer should them have decided on the appropriate action and formally inform the employee. It would have been fair to give a first warning to explicitly set out the expected conduct and the required improvement, and the decision to dismiss should only have come from an authorised manager. Equally important after reaching a decision, the employer should afford the employee the opportunity to appeal. In Paul’s case, it may be argued that his violent conduct may have resulted in serious injury, which could have led to a final rather than first warning. Basing on this, it is advisable for him to seek an out of court settlement in which he can apologise to his floor manager and the organization and eventually get back his job. On the other hand, if he insists on legal procedures, he may be proven guilty and not only lose his job but also bear consequences such as criminal charges. Since the dismissal has already been concluded, it is recommended that the organisation considers the relationship it has had with the employee. For instance, he has worked with them for four years, which entitles him to a procedural and more importantly, fair rather than unfair dismissal. For the sake of avoiding tribunal meetings and discussions, it is recommended that the organisation invites the dismissed employee for an out of court agreement bearing in mind that his right for notice of dismissal was also not fulfilled. It should be noted that Polkey principles can apply because the employer did not properly investigate the matter and his actions were not informed by consultation. Further, the employer did not give the employee an opportunity to appeal. Here, it is significant to note that the law acknowledges that there may be different outcomes if the correct procedure is followed. The implication of Polkey principles is that it will affect compensation if the employer is found to have unfairly dismissed an employee and it is applicable in the Paul’s case. However, if the unfair dismissal makes no difference in the sense that the employee would have been dismissed anyway, it will be reflected by a reduction in the compensation. Scenario 2 (4.1, 4.2 & 4.3) In this scenario, Sleepwell Holdings is a Canadian hotel company that is taking over a UK-based chain of motel-style operations consisting of five units of 100 rooms each for the first time. With the high turnover rate of staff in the UK operations, the new Canadian owners are seeking new staff via newspaper and job centre advertisements. However, some of the policy and legal requirements that Sleepwell Holdings has been operating under in Canada are not exactly in compliance with the business and labour environment in the UK. From the perspective of a human resources manager, this section will investigate the potential areas in which the company policy and legal requirements may clash and recommend the steps the company might take in order to reconcile the differences. In Canada, among the strategies that contributed to Sleepwell Holdings’ success was targeting younger employees, employing on split shift basis, providing accommodation and implementing an on-call system through which off-duty staff can be recalled for certain periods of the week. However, the targeting of younger staff in the UK may be tempting and lead to exploitation because the legal minimum age is 13. This means that the organisation may even receive and accept job applications from younger persons below school leaving age but legally eligible for employment. However, the types of jobs they can do and the working and resting hours for those below the school leaving age group is different from those who have attained the school leaving age (Altman & Golden, 2009). Sleepwell Holdings will be in compliance with UK laws in the aspect of eight hour shifts a day, since the UK allows a maximum of 48 hours a week. However, conflict may arise from the perspective of the on-call system which will essentially require staff to work more than eight hours a day. Since the Working Time Directive (WTD) stipulates that staff must be given 11 hours of rest in-between every working day and minimum of 48 hours of rest every week, the on-call system may not be applicable in the UK. According to the WTD, night time should not be less than seven hours and is described as the period between 12pm and 5am. However, it is imperative to note that the law gives an exception to some industries such as the hospitality industry in which Sleepwell Holdings operates by virtue that they require 24-hour staffing. But this does not mean Sleepwell Holdings will not be conflicting with UK laws if does not allow employees the mandatory rest required after every six hours of working and the weekly uninterrupted rest of 24 hours according to WTD. Yet, it is also critical to consider that the same law does not allow persons aged 17 years and below to work more than the stipulated eight hours a day or forty a week (OGL, 2015b). The essence of this point is that a significant portion of the school leaving population is aged between 16 and 17 years old and is eligible for employment. Hence, allowing them to opt out of the 48 hours a week limit, which is possible for persons aged above 18, will conflict with UK law. Viewed from another perspective, the WTD requirements of an 11-hour rest in-between every working day may be violated by the lack of flexibility as brought about by the on-call system. However, compliance may be ensured by the split shift system that was designed to ensure the facilities are staffed at their busiest time. Hence, by working four hours in the morning, taking a rest and working another four in the evening will not violate the 11 hour rest required between two eight-hour working days. However, this may also conflict UK laws because WTD recognizes all the time an employee is required to be present at the working site as actual working time and it must be considered for the purpose of calculating rest and work. More importantly, it must be noted that WTD considers it as working time even if the employees are permitted to sleep at the site at times when their services are not required. The rationale for setting a lower hourly rate for new staff is explained by findings of a study conducted in 2013 that showed new staffs actually earn lower in the UK (Chalabi, 2014). However, to avoid conflict, it will be imperative for Sleepwell Holdings to consider the hourly rate of national minimum wage (NMW) in the UK for the younger workers it will be targeting. Typically, the school leaving age can be placed between 16 to 20 years and the NMW is placed at £3.79 and £5.13 for persons aged between 16-17 and 18-20 respectively. The employer may chose to increase the hourly rate for employees who have worked for longer basing on any necessary criteria. However, the most appropriate means to avoid clashing with the UK law is ensuring that the minimum wage hourly rate for the new ones is not violated. The UK law stipulates that all employees have a right to be paid for services rendered. From this knowledge, it is recommended that Sleepwell Holdings does not attempt to maximise its profits by exploiting new employees since they are protected by the national minimum wage hourly rule. On the same note, the on-call criteria should not compromise the necessity of employment rights that are designed to be pro-family life. For instance, employees must be given the right to maternity and paternity leave regardless of their age in order to balance work and life. Essentially, targeting younger workers should not mean that they entirely lack family responsibilities that require their time and commitment. In Canada, one of the success factors of the business was targeting younger workers not because of pay but because of their flexibility in working hours. This is because they were seen not have as many or demanding family commitments to attend to as the older workers. However, when considered strictly as a business strategy and its potential to turn away older workers, there will be conflict with the law in UK that explicitly prohibits employment bias based on age among other considerations. It is unlawful according to the Equality Act 2010 to discriminate against job seekers basing on their age and although Sleepwell Holdings does not claim to exclusively higher younger staff, it is shown to be one of their success factors (Altman & Golden, 2009). Hence, there will be a tendency to maintain whatever strategy is considered beneficial to the economic health of the business. According to Acas (2015a), age discrimination in employment may be in the form of direct discrimination, indirect discrimination, harassment or victimisation. In the case of Sleepwell Holdings, caution should be taken to avoid indirect discrimination which may manifest itself in the policy, practice and procedure of recruiting and hiring that applies to all potential employees but disadvantages the older ones. The management may be obligated to make maximum profits for the shareholders and stakeholders, but that should not be achieved at expense of the potential older workers. For example, if the organisation requires that every employee agrees to be on-call at any one time they are off-duty, it will inadvertently disadvantage the older employees because they will have to leave their families when summoned to duty. Therefore, there should be policies in place that determine recruitment, selection and pay equally among all employees (Eurostat, 2005). Scenario 3 (3.1, 3.2 & 3.3) In this scenario where new employment contracts were drawn, of which most employees accepted and few refused, the contracting out of the Cleansing Services Division essentially entails transfer of contract. However, a requirement of transfer of service is to have an agreement between the concerned parties and as is shown in this scenario, 16 long serving employees did not agree with the new contract. Therefore, this section will advice the manager on the consultations that should be carried out with the employee before the division is outsourced as well as the legal rights of the employees. It will also address the information to be provided to the contractor with a bid to assist in planning a future redundancy programme. An employment contract may generally be described as an agreement enforceable by law and entered into by an employer and employee for services (by the employee) in return of pay (by the employer) (Acas, 2015b). However, there are laws to be followed when employers intend to vary employment contracts in circumstances such as change of employer. These are generally covered under the TUPE (Transfer of Undertakings [Protection of Employment]) Regulations 2006 and are applicable to any size of organisation. They are intended to protect the rights of employees during transfer of the services or organisation they work for to a new employer. It is imperative for the manager to consider TUPE because it has implications for both the outgoing and incoming employers. The overall effect of TUPE will be moving employees and any associated liabilities from the outgoing employer to the incoming employer by operation of law (Rothwell, 2006). Therefore, the underlying concept of TUPE is transferring every right, power, duty and liability of the outgoing employer in connection with the employment contracts of the employees being transferred to the incoming employer. Therefore, the manager must consider that the employees are legally entitled to transfer to the incoming employer under their current employment terms and conditions with all their existing terms and conditions as well as rights and liabilities remaining intact. However, it is also imperative to note that employees have the choice to accept or opt out of the transfer depending on the essential circumstances but they also risk losing crucial legal rights in so doing. For compliance with TUPE in varying the employment contracts, the outgoing employer is required to inform his employees and consult with them. It is also required to inform the intention of transfer to the appropriate representatives of the staff affected by the transfer such that any proposed measures are consulted. Essentially, this implies that there must be agreement between the concerned parties before a contract may be varied. The essence of the agreement is that there is a higher likelihood for employees to accept changes when they are afforded opportunities to contribute their views as well as understand the rationale behind such changes (Rohan, 2006). In this case, dealing with the 16 employees who rejected the new contract can best be addressed by further consultations between them or their representatives. It is more advisable to obtain written responses from the employees about the proposed changes with the aim of renegotiating the current contracts via negotiation aiming to arrive at a compromise. On the other hand, the outgoing employer can also consider offering the employees incentives to encourage them to embrace the changes. For example, the manager may buy out a particular term or condition of the contract such that the employee may introduce their own. However, this is not to mean that the incentive should be unreasonably costly in any attribute to the company as that would translate into a disadvantage (Rohan, 2006). However, if it becomes impossible to have consensus with the employees to reach an agreement about varying the contract, the manager can opt to notify them of the intention to terminate their current contract. The, he may afford them the opportunity to negotiate on the new terms but with. Under such circumstances, it is imperative for the manager to take such steps as the final resort after all other means have failed. This is because by terminating the current contracts of the 16 employees, the company will essentially be dismissing them and is, therefore, obligated to adhere to procedures of fair dismissal. Otherwise, there will be the risk of invoking an appeal from the employees citing unfair dismissal. The outgoing employee may not have much influence on the redundancy decision because it mainly lies with the incoming employer. In this case, the management should consider redundancy as the dismissal of employees for reasons not related to them as workers. Legally, the incoming contractor will be allowed to propose dismissal and re-engagement for the employees who are not in agreement with the variation of their contracts. According to the Trade Union and Labour Regulations Act 1992, if an employer intending to dismiss more than 20 employers as redundant at one establishment within 90 days, he is obligated to consult the affected employees’ representatives (Rothwell, 2006). In this case, depending on the number the new employer may want to deem as redundant, the selection process must be both fair and objective by ensuring there is exhaustive consultation between all the parties. For example, the incoming employer may base redundancy decisions on a redundancy selection matrix that evaluates performance, qualifications, attendance, knowledge, discipline, skills and experience (Rohan, 2006). All these attributes should be evaluated on equal standards among all the cleaners since they are all expected to perform similar tasks. Individual consultations must be carried out with employees selected for redundancy in a bid to seek their agreement regardless of whether or not the incoming contractor is obligated to collectively consult with employee representatives or union. On his part, the outgoing employer is obligated by TUPE to provide secure, current and accurate Employee Liability Information to the incoming employer at least 28 days before the transfer takes effect. The trade union must also be informed of the proposed varying of contract for purposes of negotiating collective bargaining. In the disclosure of information on employee liability, the outgoing employer must provide information on the identity and age of the staff he intends to transfer and the contents of the statements written by them. It is also required that any disciplinary measures taken against any of the employees being transferred within the previous two years be detailed as well as any grievances they may have raised against the outgoing employer within the same period. More specifically, the outgoing employer must detail any legal action any of the employees being transferred has taken against him (employer) such as employment tribunal or court claims within the previous two years (Rothwell, 2006). Another requirement is for the outgoing employer to provide detailed information on any existing collective agreements. References Acas 2015a, Age discrimination, viewed 2 June 2015, http://www.acas.org.uk/index.aspx?articleid=1841 Acas 2015b, Varying a contract of employment, viewed 2 June 2015, http://www.acas.org.uk/media/pdf/q/k/Varying-a-contract-of-employment-Acas-leaflet.pdf Altman, M & Golden, L 2009, Alternative economic approaches to analyzing hours of work determination and standards, M.E. Sharpe, New York. Chalabi, M 2014, UK median weekly pay is £517 - but who earns that? viewed 2 June 2015, http://www.theguardian.com/news/datablog/2013/dec/12/uk-median-weekly-pay-is-517-but-who-earns-that Citizens Advice 2015, Dismissal, viewed 2 June 2006, https://www.citizensadvice.org.uk/work/work-comes-to-an-end/dismissal/ Department for Business Innovation & Skills (BIS) 2013, Employment law 2013: progress on reform, Author, London. Eurostat, 2005, European Union labour force survey, Author, Brussels. Open Government Licence (OGL) 2015a, Dismissing staff, viewed 2 June 2006, https://www.gov.uk/dismiss-staff/eligibility-to-claim-unfair-dismissal Open Government Licence (OGL) 2015b, Maximum weekly working hours, viewed 2 June 2006, https://www.gov.uk/maximum-weekly-working-hours Rohan, P 2006, ‘TUPE could force lawyer moves’, The Law Gazette, (2005-05-26). Rothwell, R 2006, ‘TUPE changes force legal teams on firms’, The Law Gazette, (2006-03-09). White v Bristol Rugby Ltd [2002] IRLR 205. Read More