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Employee Law And Relations

Case

Des and Sarah Cole was the owner of a wine shop, they received letters from various lawyers on behalf of their employees, threatening to take legal action against them. The claims of employees were relating to unfair dismissal, discrimination on basis of gender, and breach of work timing guideline. Due to the lack of a proper model for human resource management, the conflict between employer and employees rises. A proper human resource management avoids the conflicts by increasing the communication between employer and employee.

The business of Des and Sarah lacks a proper human resource management. There were no specific guidelines for different employee activities. The organization lacks a structure for management of their human resources. By implying a proper management system, Des and Sarah could avoid any future conflicts between them and their employees. Des and Sarah should compensate their employees, for the acts that cause them difficulties.

Task 1

Explain what each of the claims means and the basis in law to Des and Sarah who have no detailed understanding of employment law and are shocked to receive these letters.

Task 2

Critically evaluate the relative strengths of each case and outline any defences that Des and Sarah might be able to use in defending them.

Task 3

With consideration of the circumstances of this case study, critically discuss the ways in which Des and Sarah could have avoided these potential conflict situations in the first place.

In your answer, use any examples of good practice from advisory organisations such as ACAS and CIPD, along with any relevant human resource management models and frameworks, to make recommendations to Des and Sarah that the might avoid this in the future

Sample Answer

Introduction
The employment law in the United Kingdom is civil law. The criminal law has an important role in health and safety law of employees. The various sources of employment law are the Acts of Parliament, guidelines issued by the government, laws of Europe, code of practices and general regulations. The employment law protects various rights of employees such as unfair discrimination, unfair dismissal, heath or retirement. The contract of employment defines the terms and the rights of employees.

The agreement between employer and employee called contract of employment, it defines the conditions, rights, duties, and responsibilities of employment. Both the parties must abide the term of the contract. In the case any party breaches the term of the agreement, the aggrieved party can file a suit for compensation.

Task 1
There were four claims made by the employees of Des and Sarah Cole. The claims were relating to discrimination on the basis of gender, dismissal without justifiable reason, and breach of work timing. The first claim was filed by Diane, who manages the daily activities of the shop. She suffered a neck injury when she fell from the stairs of the shop and was not able to join work for more than four months. Des and Sarah visited Diane and eventually decided that she is unable to join the shop in near future. After discussing the matter with their insurance company, they offered Diane one year salary of £25,000 as a payment for full and final settlement (Bell 2009). Diane decided to threaten legal action against Des and Sarah on the grounds of discrimination on the basis of disability and dismissal without justifiable reason, unless she received a compensation of £50,000 (Barnes 2005).

An employer cannot discriminate or dismissed any employee on the ground of disability; the employees are protected under Equality Act, 2010 (Deakin 2012). The employer has to make ‘reasonable adjustments’ for the disabled employee, in the organisation. In Diane case, her neck injury did not get recovered for four months, and she was unable to join the work in near future. Des and Sarah discuss this with Diane and then decided to dismiss her, after discussing the matter with their insurance company. They decided to compensate her for one year of salary amounting £25,000. The claim made by Diane is irrelevant (FBA 2011).

The second claim brings by the lawyer of Graham, on the basis of dismissal without a proper reason (Colling 2004). Graham was dismissed by Des on the ground of fraud because he imported wine and sell them to get unfair profits. Jack was part of this fraud but he was not dismissed, instead reinstated with a written warning. The Employment Rights Act, 1996 requires the employer to provide a rational reason to the employee, for their dismissal. The Graham’s claim is unreasonable since he had confessed to his crimes and he cannot challenge the employer’s decision of dismissal (Lewis 2007).

Kelly’s lawyer threatens to file a suit for the claims of constructive removal, discernment on the basis of gender and violation of the principles of Public Interest Disclosure Act unless she received a compensation of £20,000. In a constructive dismissal, the employer violates the terms of employment contract, causing the employee to resign in reaction to the employer’s conduct (The Employment Rights Act 1996) (Smith 2001). The Equality Act, 2010 protects the employees from gender discrimination in a workplace. The Public Interest Disclosure Act, 1998 protects the whistleblowers from unfair treatment by their employer or employees.

Kelly gives Des the information about Graham and Jack conducting fraud in business, therefore Kelly’s car was damaged, and she was suffering from significant stress in the workplace. Kelly has right to receive compensation from her employer, for the loss occurred to her due to whistle-blowing (Martin 2003). The claim of gender discrimination by Kelly is not valid in this case.

 The lawyer of Ralph threatens a legal action for dismissal without a proper reason and violation of the principle of Working Time Regulations and claimed a sum of £15,000. While signing the agreement, Ralph accepted the term to opt-out from his right of working maximum 48 hours in a week. According to Working Time Regulations, the employee can cancel the agreement of opt-out whenever they decided, and their employer cannot dismiss them on this ground. Ralph can claim compensation from Des on the ground of dismissal on unjustifiable reason (Hepple 2005).

Task 2
Diane’s advocate threatens to file a suit on the basis of discrimination on disability and unreasonable dismissal against Des and Sarah Cole. Diane was unable to come to work for four months, due to her neck injury, caused by her fall from the stairs of the shop. After visiting Diane, Des and Sarah decided that she is unable to come to the job in near future due to her condition. They decided to compensate her for one year of the salary of £25,000, as a full and final settlement, after consulting with their Insurance Company (Woodhams 2003).  

Diane claimed she was unfairly dismissed due to her disability and demand to increase her settlement up to £50,000. The Equality Act, 2010 protects employees from discrimination by the employer on the basis of race, gender or disability. Even if the intentions of discrimination are positive, the employer cannot discriminate against employees. In the case of Diane, the claim of discrimination has no strength to itself. Diane was unable to perform her duties due to her neck injury, even after four month and she was incapable of returning to work in near future. Under Equality Act, 2010, Des and Sarah can use the defence that employer has a right to dismissed an employee, on the grounds of inability to perform their duties.

Graham’s lawyer claimed that reasons provided by his employer for his dismissal are unreasonable. Graham and Jack found guilty of importing wine bottles and selling them illegally. The amount of profit earned by them was less than £100 each. Both of them confessed to their crime, Graham get dismissed for his acts, and Jack only received written warning. Graham claimed that the profit earned by him was low and Jack did not get dismissed for the same reason, therefore the reason of his dismissal is unreasonable (Marinescu 2011).

According to the Employment Rights Act, 1996, employer has to give sufficient reason for removal of an employee. Des can dismiss Graham on the basis of gross misconduct because he has confessed to fraud; therefore the grounds of claims made by Graham are not adequate. The fact that Jack did not get dismissed cannot be used by Graham, as a ground of unreasonableness for his dismissal.

Kelly has made claims of constructive dismissal, discrimination on the basis of gender and violation of the principles of Public Interest Disclosure Act. Kelly was a whistle-blower, and she gives Des information regarding the fraud of Graham and Jack, therefore her car was destroyed by Graham or some of his friends, and they write ‘snitching bitch’ on her car’s bonnet. She requested Sarah to pay for her expenses but Sarah advised her to go to the police. Due to her significant stress in the workplace and insensitive response from the employer, she decided to resign (England 2010).

The Employment Rights Act 1996 defines constructive dismissal as the act of employer, violating the terms of the employment agreement, causing the employee to resign. The Equality Act, 2010 protect the employees from discrimination under gender, race or disability. A whistle-blower can demand protection under The Public Interest Disclosure Act, from threats or discrimination.

Kelly’s has a right to claims compensation from her employer since Sarah’s act forces her to resign and Sarah violated the principles of the Public Interest Disclosure Act by not protecting the whistle-blower from discriminating behaviour. She is entitled to claim reimbursement from her employer. The claim of discrimination on the basis of gender is not valid since Kelly resignation was due to constructive dismissal.

Ralph claimed a sum of £15,000 as a compensation for dismissal without reason and violation of the principle of Working Time Regulations by the employer. Even though Ralph has signed an opt-out agreement from his right of working maximum 48 hours in a week, he has a right to cancel his agreement any time under Working Time Regulations. An employer cannot dismiss an employee if he cancelled his opt-out agreement (Selwyn 2014).

Des dismissed Ralph because he refused to work for three straight weeks without a holiday. This is an unreasonable reason to dismiss an employee and it violets the principles of Working Time Regulations. Therefore, Des should compensate Ralph for his unreasonable dismissal and reinstate him to his post again.

Task 3
In order to avoid any conflict between employer and employee, Des and Sarah could use an appropriate model of human resource management. An informed and engaged environment can be achieved in a workplace by choosing the correct model for human resource management. Human resource management or HRM could increase the turnover of employees, enhance performance, increase communication and develop the relationship between employer and employee (Foot 2008).

In the case of Diane, a better human resource management could have avoided the conflict between employer and employee. Des and Sarah should have adopted a suitable model for their HRM requirements. Proper measures should be taken for safety and protection of employees, and support should be provided to Diane in her injury. The employer should take necessary steps to help injured and disabled employees, when they return to their job, according to Chartered Institute of Personnel and Development or CIPD. The employer should discuss with employee their situation, to make the process more comfortable for them.

The Hartman v South Essex Mental Health and Community Care NHS Trust [2005] EWCA Civ 06 case shows the importance of employer in maintaining a proper environment at work for the employees. In this case, six suits filled by different employees claiming they suffer stress in their working environment. In Diane case, proper support should be given to her at the time of her injury, from her employer. The employer should properly communicate with the injured employee, to make adjustments for them in the workplace. A decision was taken by Des and Sarah, after discussing the case with Insurance Company, to compensate Diane with £25,000 was correct. A better human resource management model could have avoided the suit filed by Diane against her employer.

The organisation should adopt a proper system for any gross misconduct done by the employee. There must be a proper procedure and punishment for the employees who broke the code of ethics. In the case of Graham, the decision taken by Des was correct for dismissing him from his job, but the same punishment did not give to Jack. This causes conflict between Graham and Des. There must be a proper procedure for punishing an employee, in the case of fraud and the punishment should be same for every employee without any discrimination (Heery 2008).

According to CIPD, the human resource management should monitor the employees to avoid any potential fraud. In case any fraud conducted by the employee, the HRM should properly investigate the matter and collect evidence of fraud. A proper opportunity of being heard should be given to employees before taking any action against them. After confirming the crime of employee, they should be penalized accordingly for their crime. If there is more than one employee in the process of a crime, both should receive similar punishment. There should be no discrimination between employee’s punishments.

There were no provisions for protecting the rights of whistle-blower in Des and Sarah’s organisation. Kelly told Des about the fraud conducted by Graham and Jack, which entitles her to get protection under the Public Interest Disclosure Act. The model of human resource management must have provisions for the protection of whistle-blowers. The car of Kelly was destroyed due to her whistle-blowing and she can claim compensation from her employer.

According to Advisory, Conciliation and Arbitration Service or ACAS, the disclosure made by the employee must be for public interest, and they cannot be dismissed for whistle-blowing. The organization must have policies for protecting the right of a whistle-blower. The identity of whistle-blower should not be revealed to other employees for their protection. There should be no discrimination against the whistle-blower employee (Miceli 2009).

In the case of Des and Sarah, they should have a proper procedure under HRM to protect the rights of a whistle-blower. They should have compensated Kelly for her car and provided her support to avoid stress at the workplace (De Maria 2006).

Every employee has right to work for not more than 48 hours in a week under Working Time Regulations, but they can increase this limit by signing an opt-out agreement. Ralph has signed an opt-out agreement; therefore he could work for more than 48 hours a week. But working for a long time could have an adverse effect on the employee’s health. A proper structure of working hour should be made to avoid any health issues to employee (Hawkins 2005).

Ralph was working straight for two weeks, without any time for rest. Des should have given him time to rest, to avoid any health issues. A proper HRM structure could have divided work equally between different employees to avoid overworking. The employee has right to cancel his opt-out agreement, and the employer cannot dismiss him on for this reason (Dembe 2005).

Conclusion
To avoid any conflict between employer and employee; organizations should adopt a proper model for the human resource management. An HRM help in increasing communication between corporations to avoid any conflicts. The employer should take necessary steps to protect their employee’s health and security. The conflicts impact the work of corporation and adversely affect the business.

The case of Des and Sarah help in understanding the importance of proper human resource management in an organization. The various legal notice from different employees, show the importance of a human resource management. To manage their employee’s behaviour, the employer should provide them support and take various measures for benefits of their health. A suitable model of human resource management is the key to maintaining positive relations between employer and employees.  

Recommendations
To avoid any conflicts between employer and employees in the future, Des and Sarah should adopt a model of human resource management in their organisation. The model should benefit both the parties and protects their interests. The model should cover all the aspects of the employment relationship. The model of Des and Sarah should cover following aspects:

All the grounds and procedure for dismissal of an employee.
The procedure for penalizing an employee for gross misconduct.
Some reasonable adjustments made by the employer for disabling employees.
The procedure to avoid discrimination based on gender, race, religion or disability.
The procedure of providing protection and award to whistle-blowers.
Better management of work timings for the health benefits of employees.
The above procedure must be adopted by Des and Sarah in their human resource management model, in order to avoid any conflicts in future. Des and Sarah should start maintaining a healthy relationship with their employees, and communicate with them in order to understand and solve their problems in the workplace.

References
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