Overview of Employment Law in the UK
There have been enormous instances of unfair dismissals in the pre Equality Act, 2010 era, where employers used to exploit their employees unfairly. The Equality Act 2010 came into force abolishing those unfair exploitations, with the objective of providing fair employment conditions for the employees. This new legislation provides stringent laws against discrimination at workplace and prohibits any derogatory and unfair treatment of the employees in the hands of the employers.
It aids to provide a sense of equality amongst the employees and thus makes the work environment fair and improved. This Act prohibits any discrimination in the grounds of age, sex, disability, race, religion, sexual orientation, marital status, pregnancy and maternity. Prior to this Act the employers had the authority to terminate the employment of their employees randomly, without even providing them with a valid reason or notice for such a termination.
The Equality Act, 2010 was legislated to address these grievances. The Act provides for a detailed procedure and contains the circumstances compliant to which an employer is allowed to dismiss an employee. The employee, who was dismissed in compliance with this Act, has no right against the employer on the grounds of discriminatory treatment. Thus it can be inferred that this Act protects employees and also strives to protect the employers who are acting in accordance with the provisions of this Act. An enhancement of the Employment Law was established with this Act governing the employer-employee relationship and the expectations of an employee from the employer regarding the employment. It also provides for the duties and rights that both the employer and the employee would have for each other.
The Employment Law provides for the guidelines in relation to the employer-employee relationship. The Employment Law provides to create a discrimination free employment conditions. It provides for stringent guidelines to prohibit any form of harassment to the employee by the employer. The anti-discrimination laws prohibits the employer from discriminating amongst the employees on the grounds of age, sex, disability, race, religion, sexual orientation, Gender reassignment, marital status, pregnancy and maternity.
UK has employed a ‘Charter of Rights’ that provides for the basic standards that must be maintained in a workplace. It ensures the right of casting vote in workplace and collective bargaining. Trade Unions take charge of it. The right of forming trade unions and forming association is given by the US laws and regulations. The ILO’s Right to Organize and Collective Bargaining Convention laid down people’s right to solve their own issues.
The Equality Act 2010 and Its Provisions
An employer is liable to ensure a good condition and safety of an employee in the workplace under the UK employment law. A safe and risk free work environment is essential for the employees. A safe and secured job is what all employees’ desire and deserves where there is no unreasonable termination. Additionally, a female employee should have the right to embrace pregnancy and apply for maternity and a male employee should have the right to paternity leave or a leave for adopting kids. The Equality Act and the UK Employment Law make sure that the employees are provided with the desired safety pertaining to their employment.
A person’s personal and professional life is protected by the Equality Act which protects the person from any kind of discrimination. Section 4 of the Equality Act protects a person from various forms of discrimination that might come from the employer or an organisation providing services, landlord, educational institution, healthcare providers, government departments, transport authority and other local bodies. Section 4 of the Act lays down 9 types of discrimination from which a person is protected. They are as follows:
- Age
- Race
- Religion
- Disability
- Gender
- Choosing one’s own gender
- Sexual orientation
- Marriage decision
- Pregnancy and maternity
Equality Act categorizes discrimination into two kinds, namely direct and indirect. Section 13 provides for the circumstance, which comes which comes under the purview of direct discrimination. It states that when a person is subjected to discrimination on the basis of any of the mentioned nine grounds and thus leading to unfair treatment it is considered as a discrimination of a direct kind. Direct Discrimination violates the rights guaranteed under the Equality Act and are considered to be unlawful under this Act.
The person, who is subjected to such discrimination, will incur a right of civil action. Direct Discrimination may arise for three situations, namely, the identity of the person, the opinion of others regarding that person and with whom he is associated with. Direct Discrimination takes place when a person is treated in a different way from others, necessarily in a derogatory manner. Many a times, direct discrimination may not be noticed but a person might feel discriminated with respect to others in a demeaning way (Citizensadvice.org.uk 2018).
This can be termed as indirect discrimination. The provisions relating to indirect discrimination are contained in Section 19 of the Act. Both direct and indirect discrimination attracts civil remedies. Sometimes, although a uniform rules and policies are followed still a person might feel discriminated. This also implies indirect discrimination.
Direct and Indirect Discrimination
An employer must, in no circumstances, be discriminatory to his employees. An employee is also required to be professional and have a positive behaviour and compassion for his employer. A healthy interaction is necessary in between an employer and employee on a regular basis, where they should address their grievances with each other. The employer must be informed by the employee, regarding the discriminations that the employee is subjected to by the employer or any colleague within the work premises. An employee is however not expected to speculate others if he does not have a concrete reason to do so (Mohamed and Ali 2014).
The rights of an employee are as follows:
- Right to obtain a copy of the employment contract(GOV.UK, 2018);
- Right to get a minimum wage according to the National standard;
iii. Right of protection against unfair deduction of wages;
- Right against unfair dismissal;
- Right to enjoy paid holidays as per the statutory number;
- Right to sick leave;
vii. Right to receive minimum length of rest break as per the statute;
viii. Right not to be compelled to work more than 48 hours each week, along with the right of choice of ignoring it as per his discretion (GOV.UK, 2018);
- Right to be safeguard from unlawful discrimination;
- Right to protection for reporting wrongful acts at the workplace;
- Right of a female employee to procreate children;
xii. Right of a female employee to a maternity pay, as per the statute which ensures a paid maternity leave (GOV.UK, 2018);
xiii. Right of a male employee to receive a Shared Parental Pay (GOV.UK, 2018);
xiv. Right of an employee to be a part of a trade union and get redressal of his issues.
In the instant case, the dismissal of Jane on the basis of a mere doubt of another employee and the employer, in the absence of any evidence supporting that doubt would amount to unfair dismissal. The terms and condition of the employment, as mentioned in the contract of employment, must be referred by Jane in dealing with this situation. Jane has a right against discrimination based on speculations and assumptions. Jane has a right to avail the assistance of the trade union who could resort to collective bargaining to redress the issues.
A dismissal of an employee is unfair when the employer could not provide for any valid reason on the basis of which the dismissal was effected. In case there is a failure for compliance with the formal disciplinary and dismissal process by the employer, it amounts to unfair dismissal (GOV.UK, 2018);.
Unfair dismissal
An action for unfair dismissal arises if it can be proved that the employee has been terminated on unfair grounds and reasons. To bring a dismissal under the purview of unfair dismissal, it must be prove that by the employee:
- The reason of the dismissal is untrue.
- The reason provided by the employer is unfair
Rights of Employees in the UK
iii. That employer behaved in an unreasonable manner in dismissing the employee
Fair Dismissal
The employer is expected to furnish a valid ground while dismissing an employee. The following can be treated as valid grounds for a dismissal:
- Misconduct or inefficiency
- Redundancy
iii. Statutory grounds preventing an employee to do the job lawfully (GOV.UK, 2018)
- Any other grounds.
Misconduct
Summary Dismissal is a kind of dismissal in which the employer terminates the employment of an employee instantly without furnishing any notice to the employee and without compensating for the same. This kind of dismissal will be allowed only when there is a severe misconduct on the part of the employee like theft, fraud or any violent act of the employee (Estreicher and Hirsch 2013). The Employment Tribunal, however, has a different view on the same. According to the tribunal summary dismissal is considered to be unfair sometimes as the suspension of employee’s pay is only allowed in case the employment contract allows it. On any other case, the remuneration of an employee cannot be suspended.
An employee can also be dismissed in case he is incapable or inefficient to do justice to the service for which he was initially hired. In case the employer terminates an employee on the grounds of his being incapable of delivering the required job for which he was hired and paid remuneration in accordance with the contract of employment.
An employer has the liberty to terminate an employee on the grounds of redundancy of a job role, the employment for a particular area or both. An employer cannot be accused of unfair dismissal if he dismisses an employee on the basis of a job position being redundant or lost its purpose. The employer is justified in dismissing an employee on obsolesce or redundancy of any employment. An action for unfair dismissal does not arise in such case.
Thus, an employer is at liberty to terminate an employee on the following grounds and no specific procedure is mentioned for doing so in case it is done fairly (Acas.org.uk. 2018).
Therefore, in the present case, Adam is said to have proper reasons for terminating Jane if it can be proved that Jane is actually responsible for the said misappropriation of money and it is evident that he has stolen it while doing her duty at the cash counter.
British Home Stores Limited v. Burchell [1978]
This case provides one of the landmark judgements under UK employment laws. This judgement sets out the principles, which the employment tribunal is required to apply while deciding the fairness of a dismissal. In this particular case, the employment tribunal is required to explore certain other aspects other than deciding the employee’s guilt of misconduct. The following aspects have been laid down by this case which needs consideration before arriving at a decision:
- a) It is to be investigated that whether the employer has an apprehension of the employee being guilty of misconduct. In this instant case, the employer is of the opinion based on circumstantial evidence that employee has committed a misconduct. So the first contention of this landmark judgment is established.
- b) It is to be examined that whether the employer has valid reason to believe the employee to be guilty of misconduct. In this present case the employer has reasonable grounds to be suspicious about the employee’s guilt.
- c) It is to be checked that whether the dismissal process involves sufficient investigation.
Dealing with a Pregnant Employee and Missing Money
Justice Arnold is of the opinion that it is to be ensured before deciding a case that the employer who has dismissed an employee for misconduct , has all the reasons to belief the guilt of the employee for which he has been dismissed. A general belief, speculation or assumptions without concrete evidence is not to be considered as a valid ground for such dismissal (Work/Life/Law 2018).
However, the employer is justified to form an opinion about the guilt of a particular employee, but before proceeding with that opinion to dismiss an employee, the employer needs to acquire concrete evidence to support his belief (Harcourt, Hannay and Lam 2013).
ACAS Code of Disciplinary and Grievance: Employment Tribunal
The ACAS Code of disciplinary and grievance provides for a guideline for dealing with the issues related to the employer-employee relationship arising in the workplace in any profession. No penalty or proceeding can arise if it is not in compliance with this code. However, the particular matter may be taken over by the Employment Tribunal for consideration (Acas.org.uk 2018).
In case of both fair and unfair dismissal, the tribunal is under an obligation to verify whether the same is done in compliance with the code. It is to be verified that the employer had no other option than dismissing the employee (Acas.org.uk 2018).
It was decided in the case of BHS v. Burchell that the employer is justified in dismissing the employee who was under the suspicion of committing misconduct and has been speculated by the management and the employer is compliant with the code of conduct in doing the same.
The tribunal is justified in resolving the conflicts of disciplinary and grievances informally. It is supposed to refer to the ACAS code of practice to resolve relevant cases. It has the authority of adjusting 25% of the award on ground of the employer’s failure to abide by the provisions of the code (Southey 2013).
Conclusion
Thus in the given case, Jane is accused of stealing money from the accounts of the café on the basis of a suspicion by the owner of the cafeteria Adam. There is no proper evidence of the same except for Adam’s suspicion and Hillary’s allegation, who is a co-worker of Jane. Jane has also requested for a maternity leave at the same time when Adam was planning to terminate her employment. Under these circumstances there is no solid evidence against Jane which can prove Jane’s guilt. All the evidences that are available against Jane are circumstantial.
In this situation the employer would not be justified to dismiss Jane and such a dismissal would amount to an unfair dismissal as there is no concrete evidence to prove that Jane has stolen the money. Such a dismissal will result in unfair dismissal and a cause of action may arise against Adam.
Thus, before terminating Jane from employment or refusing her maternity leave application, Adam is advised to first ask for a certified medical report to prove the said pregnancy. This would provide an evidence for Jane’s guilt as she can not coincidentally become pregnant just after stealing money from the accounts and to prove the contention that she has requested for maternity leave for evading the investigation. However, if the pregnancy test is positive, Adam is required to allow Jane a maternity leave in compliance of the Equality Act 2010. Moreover, Jane cannot be dismissed on circumstantial evidence as that will violate the employment laws of UK.
Reference
Acas.org.uk. (2018). Code Of Practice – Discipline & Grievance In The Workplace | Acas. [online] Available at: https://www.acas.org.uk/index.aspx?articleid=2174 [Accessed 12 Dec. 2018].
British Home Stores Limited v. Burchell [1978] IRLR 379
Equality Act 2010
Estreicher, S. and Hirsch, J.M., 2013. Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism. NCL Rev., 92, p.343.
Freyens, B.P. and Oslington, P., 2013. A first look at incidence and outcomes of unfair dismissal claims under fair work, work choices and the workplace relations act. Australian Journal of Labour Economics, 16(2), p.295.
GOV.UK. (2018). Dismissal: your rights. [online] Available at: https://www.gov.uk/dismissal/unfair-and-constructive-dismissal [Accessed 18 Dec. 2018].
GOV.UK. (2018). Dismissing staff. [online] Available at: https://www.gov.uk/dismiss-staff/dismissals-on-capability-or-conduct-grounds [Accessed 18 Dec. 2018].
GOV.UK. (2018). Making staff redundant. [online] Available at: https://www.gov.uk/staff-redundant [Accessed 18Dec. 2018].
Harcourt, M., Hannay, M. and Lam, H., 2013. Distributive justice, employment-at-will and just-cause dismissal. Journal of Business Ethics, 115(2), pp.311-325.
Mohamed, A. and Ali, A., 2014. Dismissal from employment and remedies (pp. 1-791). LexisNexis Malaysia Sdn Bhd.
Southey, K.S., 2013. Employee misbehaviour in Australia: Through the lens of unfair dismissal arbitration (Doctoral dissertation, University of Southern Queensland).
Work/Life/Law. (2018). British Home Stores (BHS) v Burchell – misconduct and unfair dismissal. [online] Available at: https://worklifelaw.co.uk/2013/02/british-home-stores-bhs-v-burchell-misconduct-and-unfair-dismissal/ [Accessed 18 Dec. 2018].
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