Introduction to Employment Law and ABC Ltd
The balance of power in an employment contract is in favor of the employer. Thus in order to provide a balance between the powers of the employers and the employees the parliament has enacted specific legislations providing exclusive rights to the employees. The legislation now only provides rights to the employees but also ensure ethical compliance by the parties to an employment contract. The relationship between the parties to an employment contract must be harmonious in order to ensure the proper functioning of an organization.
The legislations ensure that there is a healthy relationship between the employer and the employee so that business operations may run successfully. A few legislations which have been enacted in relation to employment law are The Equality Act 2010, The Human Rights Act 1988, The Employment Rights Act 1996, The Work Time Regulations 1998 and The Health and Safety at Work Act 1974 (Legislation.gov.uk 2017). These Acts ensure that there is no discrimination within the work place along with providing assurance towards a healthy and safe working environment.
Legal issues
This part of the paper analyzes the legal risk which ABC Ltd has been exposed to with respect to the actions taken by them during the selection process along with the consequences which might arise out of implementing the new sales plan. Discrimination is an issue which is dealt strictly by employment law. The Equality Act 2010 clearly states that any discrimination which arises out of the protected characteristic provided by the act such as Age, Gender, Race, Disability, Maternity status, Matrimonial status, sexual orientation, religion and gender assignment (Legislation.gov.uk 2017). Thus the initial and prima faice risk which has been identified in the selection process conducted by the company is that of discrimination.
The company is a small company within the industry and has an extended reliance of its core customer base in order to survive within the industry. The company indulges in entertaining her customers at night in order to maintain a strong bond with them. In case of Joan Keenan the company has exposed itself to the risk of Gender discrimination. Section 13 of the EA defines direct discrimination, Section 14 defines indirect discrimination and Section 19 deals with combined discrimination and together these sections prohibit the employers form including any discrimination with respect to the protected characteristics in their actions (Legislation.gov.uk 2017).
The law is strictly against gender discrimination an example of which could be provided by the case of R (Equal Opportunities Commission) v Birmingham City Council [1989] AC 1155. In this case the the defendant school had provided less seats to girls and more to boys. They were unable to provide any good reason behind their actions and thus the court held that the defendant had been discriminatory towards their actions. As the company has not provided the job to Joan based on the assumption that the male workers would not feel comfortable to work under her leadership and she would not be able to entertain the customers at night would clearly account to an act of gender discrimination (Jitendra, Heather and Kevin 2013). Section 11 of the EA defines sex discrimination as as discriminatory activity against a man or a woman (Legislation.gov.uk 2017). As the company is not selecting Joan keen as she is a woman they may be subjected to the risk of direct sex discrimination.
Legal Risks Associated with the Internal Recruitment Process
ABC ltd can be exposed to the risk of language and racial discrimination as they have not selected Aldo Viscida for the position of the sales executive. Viscida has been at the top of the sales charts for the company on various occasions. An act of racial discrimination arises when individuals are discriminated on the basis of their national origin, race, language or ethnic. Not selecting David only on the basis that he is not good with a particular language even when he is excellent with his job may expose the company to the risk of racial discrimination.
According to Section 19 of the EA indirect discrimination arises when an employer sets out a policy or criteria which is exposes an individual to an unnecessary disadvantage thus by setting out English as a criterion ABC ltd may expose themselves to the risk of indirect racial discrimination. Language discrimination has also been adjudged as an illegal racial discrimination in the case of Kelly v Covance Laboratories Ltd (Race Discrimination: Direct) [2015] UKEAT.
As Mr. Constant has not been selected for the position of the sales executive the company can be subjected to the risk of age discrimination. The company is not selecting Mr. Constant based on the fact that he is 61 years of age. It was ruled in the case of Frost v David Harber Ltd (2010) ET 2703446/09 that a person cannot be discriminated based on his age if he has the required qualification to successfully carry out the job operations. Section 5 of the EA defines Age discrimination.
The Health and safety at work etc Act 1974 and The Human Rights Act 1998 have been enacted by the parliament to address health rights and human rights of individuals within a workplace. The plan which has been proposed by the newly elected sales executive opts of anti smoking classes and dieting schedules which might directly be in contravention to the freedom of choice right provided by the Human right Act. In case the payment structure for the employees is changed it would make them work for extra hours which may be against the provisions of the Health and safety at work etc Act 1974. The employees also cannot be dismissed according to the proposed plan as such dismissal would account to unfair dismissal under the Employees Right Act 1996.
Defenses
The parliament has not only enacted legislation to provide extra powers to the employees that have also made sure that the employers have sufficient right to carry on with business operation smoothly without being subjected to the risk of legal actions (Al Badawi 2012). As provided by the ministry of justice only 1% sex discrimination claims, 1% age discrimination claims and 4% Race discrimination claims have been successful at a tribunal during the first quarter of 2015-2016 (Gov.uk. 2017). The main reason behind this is malicious acquisitions by the employees and defenses available to the employers.
The employers have to prove that their course of action is supported by the requirements of the organization. Schedule 9 Part 1 of the EA not choosing an employee foe a job or removing him from a position even they have a protected characteristic is justified if it can be proved that the action has been taken solely based on occupational requirements. For example a black African is needed to perform a specific role that a white person cannot claim that there has been discrimination of the grounds of race.
Analysis of the Proposed Sales Plan by Mike Replica
The employers can also use the comparison test to defend against a claim of discrimination. The comparison test can be best explained through the case of Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 UKHL 11. In this case a sex discrimination claim had been bought against the defendants by the plaintiff. The plaintiff argued that the defendant had discriminated her as she was a woman and selected a male candidate for the position. The court based on its findings that many complaints were received regarding the plaintiff and not in case of her comparator ruled that the actions of the defendant were justified.
In this case a clear sex discrimination claim can be brought against the company by Joan. She and made an application for the role of the sale executive which has been rejected by the company as they feel that a woman would not be suitable for the role. She can make her claim stronger by using the comparator test in an opposite manner to prove that a male competitor with the same qualifications would have been given the job. The only strong defense which the company can provide in relation to sex discrimination is that the the selected candidate has better qualification than Joan.
Mr. Constant is entitled to make an age discrimination claim against the company. An age discrimination claim can be made because Mr. Constant has not been selected for the position of the sales executive as he is 61 years of age and the company assumes that he would be busy taking care of his ill wife. It was provided by the court in Wolf v Stadt Frankfurt am Main 2010 C-229/08 an organization can base its selection criteria on age in case the operations of the organizations require a person of a specific age group. The company can claim in this case that they are looking for a long term role towards the position of sales Executive and as Mr. Constant is nearing retirement he would not be an appropriate choice for the job.
In the case of Mandla v Lee (1983) the court ruled that in case an individual is not a part of a specified racial group he cannot claim racial discrimination. Thus as Mr. Viscida does not belong a particular racial group his racial discrimination claim can be rejected. The company can also prove before the court that English is an essential requirement to conduct business operations.
The company can also claim as defense against the increased working hours that they have not formally increased the working hours of the company and have initiated salary shift plan to enhance the sales of the company. However the company cannot dismiss employee according o the new plan as it would be direct violation of the Employees Rights Act 1996 (Hall 2014).
Employment relationship
Working individuals spend the maximum time of the day in their office and therefore they tend to form bonds with their colleagues and the management. The relationship which develops within a workplace is known as employee relations (Freeland 2016). Relationships are developed through bona fide conducts and harmonious working environment therefore in order to establish a strong employment relationship the management must ensure that they provide the employees with a harmonious working environment where the employees feel that the company is taking care of them.
Defences Available to ABC Ltd in Case of Legal Challenge
When the employees are conveyed through the actions of the management that they organization is interested in looking after their personal development they would be induced to provide extra effort with respect to the operations of an organization (Annink and Dulk 2015). A good employment relationship can enhance trust, morale, teamwork and productivity. If the relationship between the management and the employees is good than the organization would automatically have a high employee retention rate as the employees would not want to leave the organization. All individuals seek personal development and opportunities to improve their present condition thus if an organization provides them with an environment to develop themselves than no employee would want to leave the organization and provide increased effort to increase productivity.
The important issues identified with respect to the course of action taken by the company are that of Discrimination, work-life balance and privacy. The organization has apparently found to discriminate between employees based on the protected characteristics during the time of selection. Discrimination in a workplace can have a serious adverse effect on the working environment as people with the same protected characteristic who have been discriminated would lose all motivate they have towards the business operations as they will assume that the organization has no interest in them.
The proposed plan in relation to the shift in salary pattern would make the employees compromise with their personal life in order to meet their targets. Such actions would directly have an adverse effect on the work life balance of the employee. Work life balance in an important factor which has an effect on employee performance and an adverse impact on the balance would directly result in degradation in employee performance.
Even though an employment contract subjects an employee to absolute control by the employer, privacy in certain aspects is a right of the employees (Taylor 2014). If the management decides whether or not an employee should smoke and what should they eat than this would be an intrusion towards the rights of the employee and is bound to have an adverse effect on the employee relation.
Therefore the company must only focus on the skills and qualifications of the individuals when they indulge in a process of selection and recruitment. Any kind of unnecessary discrimination has to be abolished by the company with respect to the the recruitment and selection process (Kang and Shen 2017).
Conclusion
Concluding this paper it can be said that discrimination in a workplace not only affects the moral of moral of the employees and performance of the organization but also exposes the organization to the risk of legal actions. In order to successfully manage the human resources the managers must ensure that they indentify and eradicate any direct or indirect discrimination within the organization. However to ensure proper functioning of the organization the managers must ensure that they give primary responsibility to the objectives of the organization.
The managers must also know that unintentional discrimination is punishable by law but if it is done towards fulfilling the objectives of the organization than such actions can be justified. The process of selection and recruitment by the managers and line managers must give importance to Economic situations, type of occupation and the competitive position of the company. The managers must ensure that they try to recruit a diverse work force within the organization as it would contribute positively towards the organization culture.
the line manages must ensure that they do proper research before initiating a recruitment program and determine whether or not a genuine vacancy exits within the organization towards the job position. The managers and line managers must also provide complete details about the job to the individual applying for the job so that there is no scope for future disagreements and conflicts.
Recommendations
- Anti discrimination policy: ABC ltd must introduce an anti discrimination policy within the organization. The policy will act as a guideline for the managers and the employees towards any incident relating to discrimination within a workplace. It would also help the employees know what actually accounts to discrimination and when such actions can be justified. The policy will ensure that the employees understand that the organization has no intention of doing discrimination within the workplace.
- The organization must emphasis on complying with the provisions of human rights in relation to the employees (org.uk 2017). They should ensure that privacy of the individual is given respect and they should not be objected towards leading their lifestyle on their own terms. The organization must instead focus on enhancing the skills of the employees towards the business operations.
- The organization instead of changing the salary pattern which would result in increasing the working hours of the employees and disturb their work-life balance should incorporate learning and development program within the organization (Keynes 2016). The process would not only enhance the skills of the sales team but also develop a sense of ownership of the employee’s towards the sales operations.
References:
Acas.org.uk. (2017). Codes of practice | Acas. [online] Available at: https://www.acas.org.uk/index.aspx?articleid=1878 [Accessed 21 Mar. 2017].
Al Badawi, A.M., 2012. DISCRIMINATION IN THE WORKPLACE. ASBBS Proceedings, 19(1), p.5.
Annink, A. and den Dulk, L., 2015. Employment Relation and Work-Life Balance in Europe. Stabiliteit en verandering in Europa, p.147.
Employees Right Act 1996
Freeland, R.F., 2016. 11 The employment relation and Coase’s theory of the firm. The Elgar Companion to Ronald H. Coase, p.148.
Frost v David Harber Ltd (2010) ET 2703446/09
Gov.uk. (2017). Ministry of Justice annual report and accounts 2014 to 2015 – GOV.UK. [online] Available at: https://www.gov.uk/government/publications/ministry-of-justice-annual-report-and-accounts-2014-to-2015 [Accessed 21 Mar. 2017].
Hall, K., 2014. Staff Recruitment and Selection.
Jitendra, M., Heather, S. and Kevin, B., 2013. Discrimination in the Workplace. Advances In Management.
Kang, H. and Shen, J., 2017. International Recruitment and Selection Policies and Practices. In International Human Resource Management in South Korean Multinational Enterprises (pp. 51-84). Springer Singapore.
Kelly v Covance Laboratories Ltd (Race Discrimination: Direct) [2015] UKEAT.
Keynes, J.M., 2016. General theory of employment, interest and money. Atlantic Publishers & Dist.
Legislation.gov.uk. (2017). Equality Act 2010. [online] Available at: https://www.legislation.gov.uk/ukpga/2010/15/contents [Accessed 21 Mar. 2017].
Legislation.gov.uk. (2017). Equality Act 2010. [online] Available at: https://www.legislation.gov.uk/ukpga/2010/15/section/19 [Accessed 21 Mar. 2017].
Legislation.gov.uk. (2017). Health and Safety at Work etc. Act 1974. [online] Available at: https://www.legislation.gov.uk/ukpga/1974/37 [Accessed 21 Mar. 2017
Taylor, S., 2014. Recruitment and selection. Strategic Human Resource Management: An International Perspective, 10(6), pp.139-14.
The Equality Act 2010
The Health and safety at work etc Act 1974
Wolf v Stadt Frankfurt am Main 2010 C-229/08
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