Introduction to Employment Law in the UK
Employment law is that area which regulates the relationship between employer and employee which also includes expectations of employers from employees, directions given by employers to employees, and also right of employees related to their work.
Generally, law impose various right and obligations to the employees and also to them also who are not considered as employees. These rights and obligations are related to the employment of the employee such as how employees can be disciplined or made redundant, how to resolve the grievances of employees, issues related to wages, absence from work and issues related to sickness, holidays, break from work and working hours, time off in case of emergency related to family, maternity and paternity leave, and right to apply for flexible working. Employment law also provides protection to the employee against the discrimination on the basis of age, disability, sex, marriage, gender, race, religion belief, etc (CIPD, 2017).
In UK, employment law is derived from the Acts of Parliament and sets of regulations issued by government ministers under Acts. In this report, three issues related to employment law in the form of Task 1, Task 2, and task 3 are addressed. Subsequently, this report is concluded with the brief conclusion.
- In UK, for the purpose of employment law disability is defined as physical or mental impairment which affect the person’s ability substantially and long term adversely for the purpose of carrying out the normal day-day activities. However, disability also includes physical disability, some mental conditions, and mental illness. In UK, disability discrimination is considered illegal since the period of 1995, with the law now incorporated into the equality Act 2010 (CIPD, 2017).
In case disability of employee lasts for 12 months or more then it is necessary that employer must avoid practices which results in discrimination against the employee, and employer must make all the reasonable adjustments for the purpose of making the employee enable to continue the working or return to the workplace in near future (Gov. UK, 2017).
In the present case, Des and Sarah do not make any such reasonable adjustments for the purpose of enabling the Diane to continue to work or return to the workplace in near future, and they dismiss the Diane by offering her 25000 that is her year’s salary. This will considered as unfair dismissal on the basis of disability discrimination.
- Gross misconduct are serious in nature and includes things like theft, physical violence, gross negligence, etc.. There are various acts which can be considered as gross misconduct because these acts are serious in nature and have serious consequences (Gov. UK, 2017). In this employer can dismiss the employee without giving notice to the employee, but it is necessary that employer must follow disciplinary process before dismissing the employee in case of gross misconduct.
It is necessary that employer must treat equally in case two or more employees are involved in gross misconduct, but it is not necessary and employer can treat each and every employee as per their circumstance. In case circumstances of the both employees are equal then employer must treat them equally.
In this case, Des and Sarah dismiss the Graham on the basis of Gross misconduct but did not dismiss Jack as he also commits similar crime in and circumstances of both the employees are similar (ACAS, 2015).
- The Public interest Disclosure Act 1998 provide protection to the employees from being victimized or dismissed for making disclosure in some particular circumstances.
Issues Addressed in this Report
Constructive dismissal is the dismissal when employee resigns because of the breach of contract on the part of the employer such when employer destroys the trust between the employer and employee.
The Equality Act 2010 makes it completely unlawful for employer to conduct any practices which result in discrimination against the employees because of their sex.
In the present case, Kelly complaints about the Graham and jack gross misconduct because of which Graham vandalized her car, and Des and Sarah failed to provide protection to Kelly under Public Disclosure Act. Kelly resigned because of this and this is amount to constructive dismissal (Employment Law, 2017).
- As per the Working Time Regulations 1998, it is necessary that employer make sure that employees are not working for more than 48 hours in each week, and it must be noted that employees has right to opt-out from this working period through agreement. However such agreement can have notice period of maximum 3 months but in case notice period is not specified only 7 days’ notice is required to be served by employer to employee. In this case, Ralph opt-out for 48 hours as per the terms of the Working Time Regulations, but Des does not provide him week offs and also he worked for more than 48 hours (Gov.UK, 2017). Ralph stated that he was not prepared to work so much consecutive hours because of which Des sacked him over phone. This will be considered as unfair dismissal because in this case Des failed to serve notice period to Ralph.
Before dismissing the employee on the grounds of disability, employer must take reasonable steps, and it is considered as unfair dismissal if employer fails to make reasonable adjustments for the purpose of assuring that disabled employee is not at disadvantaged or employer fails to make reasonable adjustments because of their behavior.
In case employer fails to take reasonable adjustments and it becomes unlawful for employer to dismiss the employee because of the disability of the employee whether such disability is actual or perceived disability or if they are off from work ill because of their disability (ACAS, 2016). This can be understood through case law Griffiths v Secretary of State for Work and Pensions. In this case, Court of Appeal stated that dismissing an employee on the basis of absence because of the disability will result in disability discrimination (Gelder, 2016).
In the present case, Des and Sarah fail to make reasonable adjustments, and they dismiss the Diane on the basis of disability.
Employer can justify the disability discrimination if employer shows that he made all the reasonable adjustments and no more adjustments they can reasonably make, they show that employee is not able to continue the work because of their disability, and employer is not able to offer lighter or different job. In the present case, Des and Sarah take the decision of dismissal after considering the condition of Diane and also offer her Euro 25000 that is year’s salary.
As stated above it is necessary that employer treated those employees in similar way that commit similar crime. In other words, employer must treat equally to the employees who commit gross misconduct in similar circumstances. However, there is an exception to this rule also which states that employer can treat the employees in different manner if misconduct committed by employee in different circumstances.
Protection Against Disability Discrimination
In this case, Des and Sarah dismiss the Graham on the basis of Gross misconduct but did not dismiss Jack as he also commits similar crime in and circumstances of both the employees are similar.
It is necessary that employer must follow disciplinary process before dismissing the employee on the basis of gross misconduct. This can be understand through case law Harvey v Vista Hotels, and in this tribunal stated that employer does not follow fair procedure for the purpose of dismissing the employee.
In this case, Des and Sarah follow disciplinary process for the purpose of dismissing the Graham as they conduct the investigation in which Graham confess his gross misconduct and they also give them right to Appeal.
However it is the right of whistle blower not to suffer any detriment or be unfairly dismissed and under the Public Interest Disclosure Act 1998 employee has right to disclose any information to their employer related to alleged wrongdoings. However, such disclosure must be qualified as a protected disclosure then employee has right not to suffer any detriment and he must not suffer unfair dismissal. In case employee was dismissed then it automatically considered as unfair dismissal (Rusell, 2017).
In this case, Des and Sarah failed give protection to Kelly after whistle blowing, and they also rejects the request made by Kelly for the purpose of covering the cost of repairs as Graham vandalized her car because she report the fraudulent activities of Graham to Des and Sarah.
Kelly resigns because of this and such resignation can amount to constructive dismissal because Des and Sarah breach her trust.
There is no such evidence which states that Graham vandalized the car of Kelly and all this happen because Kelly disclose the fraudulent activities of Graham and jack.
As per the Working Time Regulations 1998, it is necessary that employer make sure that employees are not working for more than 48 hours in each week, and it must be noted that employees has right to opt-out from this working period through agreement. However such agreement can have notice period of maximum 3 months but in case notice period is not specified only 7 days’ notice is required to be served by employer to employee.
In this case Ralph opt-out from Working Time regulations, and later he made request to Des for week off which was rejected by Des. Argument rose between the two and Des sacked the Ralph on the phone and does not serve any notice period.
Treating Employees Equally in Gross Misconduct
Des can state that Ralph with his own will opt-out for 48 hours working regulations but later he continuously asked for week offs and initiate arguments for that.
In case employer fails to make reasonable adjustments for any employee who suffers from disability then it will be considered as disability discrimination, and if reasonable adjustments are made then employer must ensure that workplace practices did not disadvantaged the disabled employee such as employers must make rules on following matters for preventing disability discrimination:
- Selection and recruitment.
- Salary and wages, and also terms and conditions.
- Absence related to sickness.
- Dismissal, promotion, and training.
In case practices of workplace put a disable employee at disadvantage then employer must makes necessary reasonable adjustments such as by meeting them and discussed what best can be done in such circumstances. This can be understood through example such as reasonable adjustments include changing some of the duties of employees. In the present case, Des and Sarah must make sure that their workplace practices do not treat unfairly with any disabled employee (ACAS, 2017).
ACAS stated that employer must follow disciplinary rules for dismissal of employee in case of gross misconduct. Disciplinary procedure means any procedure in which rules and standards are maintained. Good disciplinary procedure includes following things which are stated below:
- Employer must inform employee about the issue in writing, and make sure that he is not discriminatory.
- Investigation related to matter must be done speedily.
- Information related to the matter must be kept confidential.
- Employer must clearly state the disciplinary action to be taken.
- Must clearly define the authority of management level for the purpose of taking disciplinary action.
- Employee must give chances to present the evidence and their arguments before taking disciplinary action.
- Employee must give right to appeal the disciplinary action of employer.
- Employer must give right to the employee for accompanied (ACAS, 2017).
In the present case, des and Sarah must frame such rules and standards at their workplace for avoiding such conflicts in near future.
Employer must ensure that proper framework is established for whistle blowing in their organization and such framework also include the policy for the purpose of protecting the employee against the unfair dismissal and being victimized. Such framework must ensure:
- Fair investigation has been conducted in case any employee makes any qualifying disclosure to the employer. Qualifying disclosure includes criminal offense, any breach related to legal obligation, any information related to miscarriage of justice, danger related to health and safety of any individual, and any conduct which cause damage to the environment.
- Reasonable person to whom such disclosure is made by the employee.
- Must state the policy for the purpose of ensuring the protection of employment rights.
- Employer must ensure that information provided by the employee is kept confidential, and do not disclose the name of employee while investigating the matter.
- Employer must ensure that employee who blows the whistle is protected under the Public Interest Disclosure Act 1988. In other words, employer must ensure the protection of employee against the unfair dismissal and being victimized (ACAS, 2012).
It is necessary that employer must make arrangements related to working hours, and such arrangements also help the organization to manage the business of organization and help the workers in managing their responsibilities related work and home. Numbers of businesses are facing the pressure to comply with the demand of 24/7 and also needs of the employees. This will also result in more flexible approach such as it includes flexible start and finish times, working hours, week offs, etc.
Employer must ensure the proper framework for the purpose of governing working hours but it also includes limit related to average working week, statutory entitlements for paid leaves in case of maximum workers, limits related to normal working hours for employees who commit night shift and also make regular health assessments of the employees, and also frame special regulations in case of young workers (ACAS, n.d.).
In this case it is necessary that Des and Sarah must make these regulations relating to working hours for avoiding any conflict in future.
Conclusion:
In this Report, after analyzing the above facts and laws it is clear that employment law not only stated the right and obligations of employee but also state the provisions for the purpose of ensuring these rights of employees such as employment law provides protection to employees against the unfair dismissal in case of disability discrimination, working time regulations, sex discrimination, protection under PICD, constructive dismissal, does not follow fair disciplinary action, etc.
However employment also impose responsibilities on employer to ensure that rights of employees are protected such as employer must not dismiss the employee on the basis of disability and ensure that reasonable adjustments are taken, must treat all employees equally in equal circumstances, must serve notice before dismissing any employee, and make sure that proper framework is stated for the purpose of taken disciplinary action.
Therefore, it is clear that this report not only states the various provision of employment law but also includes the deed discussion on right and obligation of both employer and employee.
References:
ACAS, (2013). Public interest and whistle-blowing. Available at: https://www.acas.org.uk/index.aspx?articleid=3997. Accessed on 1st July 2017.
ACAS, (2015). Dismissing staff. Available at: https://www.gov.uk/dismiss-staff/dismissals-on-capability-or-conduct-grounds. Accessed on 1st July 2017.
ACAS, (2016). Disability discrimination: key points for the workplace. Available at: https://www.acas.org.uk/media/pdf/d/b/Disability_discrim_keypoints_workplace_28_09_16tc2.pdf. Accessed on 1st July 2017.
ACAS, (2017). Disability discrimination. Available at: https://www.acas.org.uk/index.aspx?articleid=1859. Accessed on 1st July 2017.
ACAS, Discipline and grievances at work. Available at: https://www.acas.org.uk/media/pdf/r/2/D_G_Booklet_8-08_for_web.pdf. Accessed on 1st July 2017.
ACAS. Working hours. Available at: https://www.acas.org.uk/index.aspx?articleid=1373. Accessed on 1st July 2017.
CIPD, (2017). About employment law. Available at: https://www.cipd.co.uk/knowledge/fundamentals/emp-law/about. Accessed on 1st July 2017.
CIPD, (2017). Disability and employment. Available at:
https://www.cipd.co.uk/knowledge/fundamentals/emp-law/disability-discrimination/factsheet. Accessed on 1st July 2017.
Employment Law, (2017). Employment Law Guide. Available at:
https://www.employmentlaws.co.uk/downloads/freelawguide.pdf. Accessed on 1st July 2017.
Gelder, E. (2016). Discrimination arising from disability: five examples from case law. Available at:
https://www.personneltoday.com/hr/discrimination-arising-from-disability-case-law-five-examples/.
Accessed on 1st July 2017.
Gov.UK, (2017). Dismissals due to illness. Available at: https://www.gov.uk/dismiss-staff/dismissals-due-to-illness. Accessed on 1st July 2017.
Gov.UK, (2017). Dismissals for conduct or performance reasons. Available at:
https://www.gov.uk/dismiss-staff/dismissals-due-to-illness. Accessed on 1st July 2017.
Gov.UK, (2017). Dismissing staff. Available at: https://www.gov.uk/dismiss-staff/unfair-dismissals. Accessed on 1st July 2017.
Griffiths v The Secretary of State for Work & Pensions [2015] EWCA Civ 1265.
Rusell, T. (2017). Employment Law Guide. Available at:
https://www.tim-russell.co.uk/upimages/employment%20guide.pdf. Accessed on 1st July 2017.
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