Employment Law and Employee Relations Assignment

Introduction

Employment relations between employers and employees are managed by several different sources. There are a variety of statutory provisions which govern the acceptability of certain behaviours by either party. Key legislative provisions that will be referred to throughout this case study include the Employment Rights Act 1996 (ERA) and the Equality Act (2010) EqA, amongst others. Each of the three situations here will be looked at individuals although it is noted that each of the three people in question are employees and there is no need to consider the tests of whether or not the individuals are self-employed or employed for the purposes of statutory protection (although this was not as clear with Sally, see below for analysis). Each employee has also been issued with a contract which is presumed to be compliant with the minimum statutory requirements. Each scenario will be looked at in turn.

Jim

The discussions associated with Jim and his recent civil partnership indicate that there is a prima facie argument being presented by Jim that he is being discriminated against by virtue of his sexual orientation. Jim has argued that he has been given a less favourable shift pattern and that this is due to his sexual orientation and his statement that he is likely to be seeking to take time off to raise a child in the near future. He has also indicated that he has been subject to abuse from a colleague by virtue of his sexual orientation. Jim is now off work ill and has suggested that he may wish to resign.

The danger from the Council point of view is that Jim resigns and states that he was constructively unfairly dismissed by virtue of his treatment due to sexual orientation. Although he has only been employed for a period of 18 months and this would typically mean that he had not have the appropriate qualifying period for unfair dismissal. However in accordance with section 19 of EqA there is no qualifying period and this therefore presents a danger to the Council. In order to potentially argue this, Jim would have to show that he had suffered from discrimination, harassment or victimisation in the work place as a direct result of his sexual orientation. In accordance with the EqA 2010 direct discrimination, indirect discrimination, harassment and victimisation are all outlawed.

Jim is seemingly arguing that he is being directly discriminated against as he is being given worse shifts than his counterparts who are heterosexual. In order to prove this there would need to be a comparator so that he could show that he has been treated comparatively worse than his counterpart, the comparator having circumstances that are not materially different to Jim (Shamoon, 2003). Therefore in this case it would be necessary to look at the treatment of someone who is in all ways similar to Jim with the exception of sexual orientation. The facts as indicated here are not sufficiently clear to show whether or not on balance Jim has been treated any differently than other colleagues with the revised shift patterns. There is also an additional concern faced by Malcolm in that in the case of Martin (2006). In this case it was held that the investigation of the grievance process was in itself discriminatory as the manager had failed to give the complainant the necessary time and attention, instead dismissing his grievance as petty. Malcolm’s response to Jim’s verbal statement is therefore a concern and although a formal grievance has not been raised the matter needs to be treated with greater concern in order to investigate the complaint fully.

In relation to the investigation of victimisation and harassment, the full process needs to be followed in order to comply with the requirement of the EqA to protect Jim. Section 26 of the EqA deals with the conduct that has the effect of being discriminatory by virtue of victimisation and harassment. Again the full facts have not been ascertained as yet and although Jim feels the emails are coming from a colleague this would need to be investigated fully.

The crucial aspect of this scenario however is to deal with the grievance in an appropriate manner. Malcolm’s previous brushing aside of Jim could in itself create allegations of discrimination and this needs to be rectified as a matter of urgency.

A failure to do so could result in Jim bringing a claim for constructive, unfair dismissal with the possibly of the tribunal awarding compensation for injury to feelings. This is aimed at being compensatory and not punitive but nonetheless presents a real danger to the Council (Corus, 2005).

Frank

This scenario deals with an employee that is known for several misdemeanours over the two years of his employment, most notably going out during the week and weekend and attending work in a manner that is seen to be unacceptable. His latest error as a result of this activity has resulted in a potential substantial loss to the Council. There is no indication that his action with the transcription error happened when he was doing anything outside of his authority within work. It is also noted that he is paid a minimum wage or ?5.13 at 19 years of age which does not indicate that he is an apprentice. That said being 19 and recognised to have substantial weaknesses in his performance which do not seem to have been picked up previously places the Council in a weaker position. Despite this, it is evident that his error has caused a substantial loss and as such it is reasonable for the Council to look towards a disciplinary.

The principles of fairness when conducting a disciplinary are contained in the ACAS Code of Practice on Disciplinary and Grievance Produces (2012) as well as the non-statutory guide that is also created by ACAS. More formally, S98 of ERA states that in order for an individual to be dismissed the employer is required to have acted reasonably and following a suitable disciplinary process would be a key component of this. In the event that the process is not followed and Frank then claims unfair dismissal the failure to follow the process could result in an uplift of any award by 25% (Section 207 of Trade Union and Labour Relations (Consolidation) Act 1992).

Firstly it is necessary for the employer to consider whether formal action is necessary. It is not clear whether previous misdemeanours or poor performance has been dealt with formally or informally and this should be looked at as a matter of priority. However for the purposes of this advice it is suggested that these have not been dealt with formally in any way. Where a discussion is to be recorded formally on the record of an employee, as is likely to be the case her section 11 of the Employment Relations Act 1999 will become relevant and the statutory right to be accompanied needs to be taken into account. It was confirmed in the case of Sarkar (2010) that where the disciplinary could result in dismissal it is not acceptable to use an informal process.

The potential loss here is substantial and therefore it is possible that the Council could be looking at gross misconduct. Frank has the qualifying period of 2 years service and could therefore potentially claim unfair dismissal making it vital that the processes are followed correctly. The employer needs to act promptly as if it fails to indicate the severity of the situation to the employee there is a danger that it would be seen to have affirmed the contract and accepted the employees repudiatory breach (Cook, 2009).

A full investigation is necessary which will then potentially lead to the disciplinary procedure. The position of the employer should however be reserved for the duration of the investigation. During the investigatory meeting and the disciplinary meeting (if there is one subsequent) the employee has the right to be accompanied. The level of investigation necessary is dependent on the severity of the accusation (A, 2003). Where an employee is at a serious risk of long term impact for example being dismissed and receiving a professional detriment a much more thorough investigation is required.

Based on this and the underlying need to act reasonably Frank should be suspended in order for the investigation to take place. He should be informed of his rights and obligations during the period and also how long he is likely to be suspended for. As the conduct is sufficiently severe that it could result in dismissal this is a crucial step and the investigations should be very thorough. There are concerns that the Council has been aware of performance issues and has not yet dealt with the matter. Furthermore it would seem unreasonable that a junior individual was able to make such a costly error and this will have to be born in mind when determining the severity of the disciplinary process to be followed.

Sally

Sally’s contractual status is questioned initially as she is currently working various hours with a weekend on call every month. Sally has been located at the Council office for 3 years with a set desk and specific hours. This level of control is considered to be sufficient to comply with the definition of employee as per section 230 of the ERA 1996. This is a matter of fact and law and it is suggested that as she was required to personally preform the contract and the Council had a high level of control she would be deemed to be an employee (Carmichael, 2000). Based on this it would be the case that Sally is entitled to the statutory minimum holiday which is 20 days (excluding 8 bank holiday days).

Sally has requested a change to her current working hours which is dealt with a flexible working request and secondly she is likely to be interviewed alongside others for the full time vacancies which have now arisen, should she wish to apply and would not want to be discriminated against by virtue of her caring role for her terminally ill mother. Since June 2014, employees with at least 6 months’ continuous service have been able to apply for flexible working for any reason. The employer is then under a duty to deal with the request in a reasonable manner and be fair in the way that they treat the application (Duncan, 2012). Crucially, in accordance with section 13 of the EqA it is possible for an employer to be directly discriminating against an individual who is treated less favourably due to the disability of an associated person (Coleman 2008).

This situation is potentially difficult for the Council to manage and there is at least some argument that Sally is not in fact an employee. On balance however this is not a valid argument given the prescriptiveness of the hours of work and the physical base in the council as well as the personal nature of the services provided. The Council would therefore be required to provide paid holiday and to provide Sally with her contract of employment. Furthermore any requests for flexible working would need to be dealt with fairly and when looking to fill full time roles, Sharon would have to ensure that she did not discriminate against Sally as this could result in disability discrimination despite the fact that the disability is not suffered by her directly.

Conclusions

In summary, Jim should be offered a full and diligence grievance procedure to prevent him resigning and later claiming constructive unfair dismissal by virtue of sexual orientation discrimination. Frank should be dealt with formally through the use of the disciplinary procedure with a full investigation and if necessary a disciplinary that conforms with statutory requirements. Sally is, on balance, an employee and needs to be managed with due care to the disability discrimination rules and the need to be fair and reasonable when considering any flexible working requests.

References

ACAS (2012) Disciplinary and Grievance Procedures Available at: http://www.acas.org.uk/media/pdf/k/b/Acas_Code_of_Practice_1_on_disciplinary_and_grievance_procedures-accessible-version-Jul-2012.pdf

A v B [2003] IRLR 405

Carmichael v National Power plc [2000] IRLR 43,

Coleman v Attridge Law and another [2008] ICR 1128

Cook v MSHK Limited and another [2009] EWCA Civ 624,

Corus Hotels plc v Woodward and another UKEAT/0536/05,

Duncan, N (2012) Employment Law in Practice, City Law School (London, England, Oxford University Press) p.216

Employment Relations Act 1999

Employment Rights Act 1996

Equality Act (2010)

Martin v Parkam Foods Ltd ET/1800241/06

Sarkar v West London Mental Health NHS Trust [2010] IRLR 508

Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 (HL)

Trade Union and Labour Relations (Consolidation) Act 1992