Questions:
Whether MB is liable to Olaf for Unfair dismissal
According to section 94(1) of the Employment Rights Act [ERA] 1996, an employee is entitled not to be unfairly dismissed by his or her employer. In order to be entitled to this right, an employee must satisfy the following eligibility criteria:
- the person must be an employee,
- the person must have been employed for two or more years,
- the person must establish that he had been dismissed.
Dismissal under the ERA 1996 can be categorized into automatically , automatically fair reasons and potentially fair reasons. Automatically fair reasons imply that the employee has been dismissed on the grounds of unofficial strike action or national security reasons. The manner in which the employer has handled the situation shall not be taken into account. In case employees claim to have been dismissed for unfair reasons, the employees must establish that are employees and have been working as one for more than 2 years and have been dismissed on unfair grounds. The employees must establish that he or she has been terminated by the employer with or without notice under section 95(1) of ERA 1996.
After satisfying the criteria stipulated under section [95] of the ERA, the employers becomes responsible to establish that the reason for dismissing the employee falls within the prima facie fair grounds for dismissal as stipulated under section [98] of the ERA 1996. The tribunal shall determine whether the employer has acted reasonably in considering the ground for dismissal as a sufficient reason to dismiss an employee under section [98(4)] of the Act. In order to determine the reasonability of the ground of dismissal, the court shall apply the Range of Reasonable Responses test as held in Iceland Frozen Foods Ltd v jones [1983].
The grounds stipulated under section [98(2)] of the ERA Act, which are considered as fair grounds to dismiss any employee, include:
- Conduct
- Capability or Qualifications
- contravention of an enactment
- redundancy
- SOSR (section 98(1)(b))
Dismissal of an employee on the ground of gross misconduct is common as misconduct is considered as one of the fair reasons for dismissal stipulated under section [98] of the Employment Rights Act 1996. In British Home Stores v Burchell [1978], the court held that while determining whether a dismissal for misconduct is fair or unfair, the court shall apply the Burchell test. In order to establish that dismissal on grounds of misconduct is a fair reason, the employers are required to satisfy that:
- the employer believed that the employee was guilty of misconduct;
- the employer had reasonable ground to believe that the employee had been guilty of misconduct;
- that the employer had carried out reasonable investigation at the time when he or she believed that the employee was guilty of misconduct;
The tribunal must also determine whether the decision of the employer to dismiss the employee fell within the range of responses to the misconduct on part of the employer was reasonable enough that any other prudent employer would have adopted similar responses under such circumstances. In regards to the reputation of the dismissed employee, the employer must establish that he has considered all the options available prior to dismissing the employee as was held in Baker v Securicor Omega Express [2000].
Answer:
In order to determine whether the conduct of the employee amounted to gross misconduct, the behavior of the employee must be so serious that it leads to dismissal without former notice or warnings. The tribunal should also have regards to the fact whether the conduct of the employees amounted to gross negligence or deliberate wrongdoing and that whether the employer acted reasonably in considering such conduct as a gross misconduct. In Fuller v The London Borough of Brent [2011], the Employment tribunal held that the investigation against the dismissed employee was unjustified, as no prudent employer would have dismissed an employee based on one incident.
As per the ACAS Code, the employer is required to investigate the issue and inform the employee in writing to attend a meeting regarding the disciplinary procedures. The employee has a right to be accompanied and has a right to appeal against the decision made. The conduct of grievance procedures is implied and it must allow the employees to raise their issues in a confidential environment. Grievance must be dealt with timely and employee must be satisfied that the issue has been discussed, in case of failure, giving the employee an opportunity to approach higher authority. The non-compliance with the ACAS Code of Dismissal; Grievance procedure, shall render the dismissal unfair if the employer is at fault under section 98(1) of the ERA 1996. The employee shall be entitled to compensatory award that can be reduced or increased to 10-50 percent. The other remedies available include re-engagement, re-instatement, compensation, etc.
In the given scenario, Olaf shall be entitled to the right not to be dismissed unfairly under section 94(1) of the ERA 1996 as he was the employee of Mildam Brewery (MB) for 15 years and that his line manager Preeti had dismissed him. However, it is the responsibility of MB to establish that such dismissal was based on the ground of misconduct, which is a fair ground of dismissal under section 98(2) of the Act.
In order to determine whether the dismissal of Olaf is fair, Buchell’s test or the reasonable responses test can be applied according to which the employer must establish that the company believed Olaf was guilty for willful misconduct and it had reasonable ground to believe he had committed misconduct. The company must establish that it carried out investigation from the moment it believed that Olaf committed misconduct.
Olaf had been engaged in heated discussions with Preeti since she has joined stating that she was interfering with his job. Olaf is always reluctant to follow instructions given by Preeti but ultimately follows them. Olaf even swore at Preeti and misbehaved with her. Olaf, although an expert in making beer but he was not good at running business still he argued and engaged in misbehavior with Preeti regarding undertaking certain changes in the company.
Issue 1
As per the ACAS Code on grievance procedures, Olaf was notified to attend a meeting and he may bring union representative or a work colleague along with him in the meeting. He was warned to apologize else, he would be dismissed prior to the meeting. Olaf was also given chance to respond but he kept stating that Preeti was interfering with his work. This implies that the behavior of Olaf was, though, serious to lead to dismissal but he was warned about it before, as well.
Conclusion
The company is liable for dismissing Olaf, as the company did not attempt to undertake all other options before dismissing Olaf. Olaf has been in the company for years and was an expert in making beer. The company failed to allow Olaf to raise his issues in a confidential environment right from the moment it started. Grievance must be dealt with in a timely way but the heated arguments carried on for three months without being resolved. Further, the company did not even allow him to approach higher authority for resolution of the issues. As was held in Baker’s case, the company did not consider all the options that were available to resolve the issue. As was held in Fuller’s case, there were no justified investigation carried out regarding the issues and no prudent employer would have dismissed the employee under same circumstances. Hence, the company shall be entitled to compensate Olaf with compensatory award or reinstate/re-engage him in the company.
- Whether MB shall be held liable under Equality Act 2010 against
- Dave
- Steve
- Preeti
- What are potential remedies available to MB against any liabilities
According to section [39(1)] and section [39(2)] of the Equality Act 2010, discrimination in employment has been stipulated. The statute identifies nine protected characteristics under section [4] of the Act, which includes disability, Gender re-assignment, age, Marriage and civil partnership, Race, Pregnancy and maternity, Religion or belief, sexual orientation and sex.
Discrimination is described as ‘prohibited conduct’ in the Equality Act 2010. Discrimination at workplace can be categorized in the following four forms:
- direct discrimination under section 13,
- Indirect discrimination under section 19,
- victimization under section 27,
- harassment under section 26.
Direct discrimination under section 13 of the Act refers to a less favorable treatment towards certain employee or group of employees based on the ground of protected characteristics. Discrimination by association is also included within the definition of direct discrimination under section 13 of the Act.
Discrimination at workplace on the ground of Association with someone who shares the characteristic has been is unlawful as was held in Showboat Entertainment Centre Ltd. v Owen [1984] and Weathersfield Ltd v Sargent [1998]. The concept of discrimination by association has been incorporated into the UK legislation subsequent to the landmark decision of ECJ in Coleman v Attridge Law [2009].
Legal Rules
In order to defend the discriminatory conduct exhibited by the employer, he or she may provide a justification on the grounds stipulated under Schedule 9 of the Equality Act 2010. The grounds of justification include:
- proportionate means of attaining a legal aim,
- personal characteristics,
- occupational requirement that is essential as per the nature of the job,
- personal service – victims of rape;
- Personal characteristics- authenticity in acting.
Positive discrimination refers to the treatment towards a person mostly because of the protected characteristics that is under-represented at workplace. Disability being the only exception, positive discrimination amounts to direct discrimination against others on the ground of different characteristics, which is unlawful.
According to section [136] of the Equality Act 2010, the provision is applicable in case of violation of the Act. If the primary facts of the case signifies that some form of discrimination has taken place, the onus of proof shifts upon the employer who is required to establish that discrimination did not take place at workplace as is held in Igen Ltd and others v Wong and other cases [2005].
In case of discrimination at interview stage, the person who feels have been discriminated by not providing the job may serve upon the employer a discrimination questionnaire under the Equality Act 2010, which will deal with the employer about their treatment. A questionnaire is useful when the job interviewee is not certain about the grounds on which he has not been offered the job and need to obtain information from the employer.
- Potential liability against Dave
In the given case, Dave applied for the job of head brewer. He was the most qualified candidate for the job as he had educational qualification as well as practical experience that was appropriate for the job. However, he was not selected for the job but James was selected who merely had technical and practical experience in large brewery because Preeti appointed him on the grounds of race. This amounts to Discrimination by association under Section 13 of the Equality Act 2010, which is included in direct discrimination.
- Potential liabilities against Steve
Steve had educational qualification until secondary school and had 3 years experience in large brewery. The company may use the defense that he was not qualified for the job post as James possessed college degree and had technical education.
- Potential Liabilities against Preeti
The workers have been making racist jokes about Preeti’s ethnic background and used abusive words for her that was written on the brewery wall near her car. This amounts to direct discrimination on the grounds of race, which is unlawful, and the company is liable to take effective steps to prevent discrimination at workplace based on the nine protected characteristics, which includes race and take disciplinary or legal actions against any person who commits the same within the workplace.
Conclusion
In case of Dave, MB may use the defense that Jams was selected over Dave because he qualified for the post which in reality, shall not be considered as a valid defense. Dave may serve a discrimination questionnaire upon the company to be certain that the company has practiced discrimination.
In case of James, the company may not be liable as James was not qualified for the post compared to the other applicants and his non-selection is justified.
In Preeti’s case, she is liable for committing discrimination with Association while interviewing Dave, Steve and James. James was also not qualified for the post and was for belonging to same ethnic background. She is also liable for committing direct discrimination under the Equality Act 2010, which may result in disciplinary proceedings including her termination as was held in Showboat Entertainment’s case.
References
Baker v Securicor Omega Express [2000] IRLB 633 EAT
British Home Stores v Burchell [1978] IRLR 379
Coleman v Attridge Law [2009] 1 CMLR 28.
Employment Rights Act [ERA] 1996 at section [94(1)].
Equality Act 2010
Fuller v The London Borough of Brent [2011] EWCA Civ 267
Iceland Frozen Foods Ltd v jones [1983] ICR 17
Igen Ltd and others v Wong and other cases [2005] EWCA Civ 142
Showboat Entertainment Centre Ltd. v Owen [1984]
Weathersfield Ltd v Sargent [1998] IRLR 94
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