Legal Framework in Employment
Question 3: Document 1 case study
(a) E-mail Draft to
From:
Sent:
To:
Subject: Re: Employment Advice
Hello Marie Anne,
In response to above mail, I would like to advise that before undertaking any dismissal action against the employee (Zain), it is responsibility of the employer to proceed according to the disciplinary procedure under the fair dismissals of the UK legislation as per section 3 of Employment Rights Act (ERA). It is better to first warn the driver about the speed exceeding issue to offer him a chance to improve the driving speed per hour as per the zone speed limit and train the employee to drive vehicle within legal speed limits to ensure safety of driver and others. It is also essential to carry out proper investigations regarding the speed exceeding in different zone. Moreover, exceeding permitted speed limit pose serious fines, penalties and danger to other along with driver disqualification for seven to up to twenty eight days in the UK. If Zain has been warned in verbal or written form or continue to repeat and is a major concern then another option for employee is to seek other type of dismissal.
As the company vehicle policy does not have speed guidance, you can undertake dismissal contrary to statute which is unfair dismissal for dismissal for Zain. For this, it is required to provide justification that dismissal is as per the provision specified in the employment law. This is essential to fulfil the need to act reasonably under the law thus, it allow the employer to keep away from misuse of power or intentional harm to employee. Under section 98 of Employment Rights Act in the United Kingdom, it is state about employment contract termination from employer side or resignation from employee side with or without notice is defined as dismissal and it determines whether the employee dismissal was fair or unfair. The labour law case of Iceland Frozen Foods Ltd vs. Jones [1982] demonstrates unfair dismissal case in the United Kingdom by Employment Appeal Tribunal (Brodtkorb, 2014). The case was assessed for the employer reason to dismiss Jones whether fall within reasonable response and whether the employer has followed a standard procedure prior to employee dismissal which is accepted to be fair. This is governed now by the subsection 4 of section 98 of employment right law, 1996 was considered to illustrate the reasonable act of the employer in treating the reasons given by Iceland Frozen Foods Ltd. as sufficient for Jones dismissal from employment.
Thus, to dismiss Zain under unfair dismissal the employer (Marie Anne) needs to ensure that employee fulfil the qualifying requirement to bring a claim under this kind of dismissal under section 95 of the Employment Rights Act, 1996. It is important to note that the qualifying requirements for employment initiated on or after 6 April 2012 needs to qualify that Zain is an active employee of the company has been employed for minimum of two years from the effective date of termination as per section 108 (1) of the act to fulfil qualifying period of employment (The National Archives, 2018) and employment contract has been terminated. Thus, rule in private sector for dismissal require continuity of employment with the same employer under section 139(2) of Employment Rights Act (Emir, 2014). Thus, a severe misconduct on Zain part has chances to justify the dismissal reason. On the other hand, section 94 of ERA is not applicable to employee dismissal when employment period is less than two years. Additionally, as mail did not specify the length of service or break in service of Zain with the company, thus above sections can be considered to decide the need for employer to justify fair reasons for employee dismissal on the ground of misconduct. The conduct of employees is considered under section 98 subsections 2 of ERA.
If the employer seeks employee dismissal based on the reasonable ground of misconduct then it is requires to conduct a fair procedure for disciplinary action. It is also advised to follow the Advisory Conciliation and Arbitration Service (ACAS) code if there is no disciplinary policy in the company to handle this workplace issue. ACAS code of Practice provides guidance on the disciplinary and grievance procedures which state that process should follow a written notice or warning letter to specific employee to provide an opportunity to state reason for the specified for the imposed conduct prior reaching to a termination decisions or penalty/punishment, etc (Lewis, 2013). As in section 94 of the ERA indicate that each worker has right not to be dismissed under unfair dismissal (Harris, 2015). The case of British Home Stores Ltd v Burchell [1978] IRLR 379 presents unfair dismissal law and set out the test in terms of employer consideration that employee is guilty, genuine basis/reasons to suspect and did the employer undertook a reasonable investigation before arriving at a final decision about employee being guilty (Brodtkorb, 2014). These can help the employment tribunals to arrive at a decision whether the employer have acted reasonably in taking action for employee dismissal (Painter and Holmes, 2015).
The procedure should initiate by conducting a disciplinary interview with Zain by giving an advance notice for the hearing to give opportunity to answer to the allegations/proof or exceeding the speeds in speed limits zone. This should be done in presence of HR and employee representative of his choice. It is also noted that dismissal of an employee based on first offence (which is not major) is can be unfair. In UK, the employers follow four stages of disciplinary process which include verbal warning, written warning, final written warning and then dismissal decision. Also, the employee under the dismissal has right to appeal against disciplinary sanction.
Thus, Zain dismissal is relatively easier for Marie if the employee is not under continuous employment of two years with the employer as it will not require demonstrating with reasonable act. In contrast, in the case of two or more years of services then you are required to provide procedural fairness in following a disciplinary approach on behalf of the company on basis of misconduct and to bring the employer into disrespect though bad publicity as the vehicle has logo of the company that exceeds the speed beyond permitted limits.
Moreover, you (Marie) can be under the effect of wrongful dismissal claim if Zain is dismissed without the following a proper disciplinary process as per the company policy. There is also claim for award of compensation in term of financial loss caused due to dismissal of employee in wrongful dismissal. Section 112 of Employment Rights Act, 1996 provides that compensation must be computed as per ss118-127A for financial loss only and not for dismissal manner or loss to feelings. The decision to dismiss an employee should be on fair, ethical and reasonable grounds as employment is associated with the risk of legal consequences and challenges.
Kind regards,
Anushka
(b) Relevant policies to deal with conduct issues in the workplace
Marrie Anne needs to consider relevant policies on to deal with conduct issue in the workplace. It is advised to Anushka that Marie Anne do not have sufficient information in regards to speeding violations in the company policy about taking care of the vehicles of the company. There is a need to update the company policies in relation to speeding in vehicles and expected work and behaviour standards. Thus, having clear policies in workplace is required to deal with minor or gross conduct issue. This is shown in the case of Liberty Living plc vs. Reid UKEATS/0039/10/BI which is based on unclear company policy on alcohol and employee was not well aware of it and dismissal was unfair (Garden Court Chambers, 2011). The majority decision of Employment Tribunal considered it the dismissal of the employee as unfair owing to the dismissal which was based on a company policy which was confusing and employee stood out to be unaware of it. Another relevant policy that is required to deal with conduct of the employee is a disciplinary policy and setting out a formal procedure for written warning and investigation under this policy. The employer needs to set ground for investigation and invite the employee for disciplinary meeting and provide a written statement for the charges against the employee to discuss the matter. Also, the employee can be accompanied by a fellow worker or union representative to the disciplinary meeting according to the Employment Relations Act, 1999. The disciplinary and grievance procedure needs to be in adherence with the ACAS code of practice under the Employment Act, 2002. This will be helpful to guide in coping with workplace relationship between employer and employee or from individual standpoint. If speeding vehicle is need to consider as a potential misconduct or unacceptable behaviour that is required to be specified within the company policy. In addition to this, the document needs to specify disciplinary rules that are applicable to employee and rules practically available to employee in a document as per section 3 of Employment Rights Act, 1996. Moreover, any change in statement in matter as needed any section 1 to 3 of this act, the employer need to provide the employee a written statement describing the particular of the changes under section 4 of Employment Rights Act, 1996.
Question 4: Document 2 & 3 case study
(a) Nature of the ACAS Early Conciliation scheme and the benefits
Early conciliation was introduced under the Enterprise and Regulatory Reform Act, 2013 and is made available from April, 2014. Any tribunal claims on or after 6th of May, 2014 a claimant need to provide a notification for early conciliation to Acas (Corby, 2015). In simpler terms, it is applicable to Employment Tribunal proceedings and as a legal requirement the potential claimant notifies ACAS of the complaint by mail or phone or online through www.acas.org.uk/earlyconciliation under the ET1 Claim. In case of Westvey Ltd. it applies for unfair dismissal for Ian Stanmore. Early Conciliation is considered to be an effective way to resolve employment disputes in workplace due to its independent nature (not involved in Tribunal system). Acas play an impartial role as it does not represent employer or employee. The claimant is contacted by the Asac member to explore the possibility of reaching settlement with the other party (employer). Thus, Early Conciliation scheme avoids the need of the employer and employee to undertake Employment Tribunal claim. If there is no settlement, an early conciliation certificate is issued that allows the party to proceed for Employment Tribunal claim (Wood et al., 2014).
The benefits of the Early Conciliation scheme is that it saves time, cost, expense and stress going to the whole procedure of Employment Tribunal proceedings (Busby, 2015). Early Conciliation plays a role in informing the disputed parties about strengths and weakness of the case and provide alternative to resolve the issue. This process is confidential while tribunal hearings are on the records of the public. The disputed parties are in control of the process as the mutual solution are decided by the parties and agreed outcomes can be implemented on a fast basis thus, it is a quick way to resolve workplace issue and in making agreement to resolve dispute in the workplace.
(b) Implications of non-submission an ET3 response and grounds of resistance to the ET1 claim and relevant applications
The claim is lodged under ET1 form is reviewed by the tribunal and after its acceptance it is sent to respondent (employer). From the employer side, it is required to submit a formal response under, ET3 form. The ET3 will provide that refused to accept on reasonable grounds of defence. Under the Sch 1 of Employment Tribunal (Constitutional Rules of Procedure) Regulations, 2013 the ET3 form must be submitted within 28 days of the Tribunal letter/notice as per prescribed form (Kerr, 2016). As per rule 21 of this regulation, if employer is unable to provide ET3 form within the designated period an Employment Tribunal (ET) Judge can issue a judgment in whole or parts in favour of claimant in review of the available material. Thus, if Westvey Ltd. does not submit an ET3 response, this can lead to a default judgment made by the Employment Tribunal Judge against if Westvey Ltd. and it is also possible that the employer can be excluded from participation in the claim.
Thus, it is advised to Westvey Ltd. to submit the ET3 response form and submit the asked information and relevant document copies within the 28 days time. This will
The grounds of resistance to the ET1 Claim to oppose the claim towards the dismissal of Ian as it was considered under a fair procedure for employee dismissal for misconduct by notifying in advance for the disciplinary meeting and charges pressed against Ian and refused to accept claim as decision to dismiss for fraudulently claiming expenses which is a gross misconduct per company policy/rule. Moreover, Ian has accepted the changed pressed against him in the disciplinary meeting.
At this stage, Westvey Ltd. can make an application about the claim issued for preliminary hearing to strike out the order. This application can be made to the Employment Tribunal. Here, whole or parts of the claim/response would no longer continue where there is no fair chance of success. This can be done for the all part of Ian claim for no reasonable chances to succeed to request the tribunal judge to dismiss the ET1. On the other hand, another application can also be made to request the Employment Tribunal for a deposit order in the preliminary hearing. Here, the claimant or respondent is required to pay a deposit (up to £1,000) which is preserved by the ET to continue on specific part of claim that has little reasonable prospect of success (Corby, 2015). Thus, Westvey Ltd. need to submit an ET3 response to ET1 claim and can consider making relevant application for strike out order or deposit order for Ian to continue the claim.
(c) Westvey Ltd’s grounds of defence to Ian Stanmore’s Claim
Westvey Ltd. ground of defence against the Ian claim for unfair dismissal for gross misconduct falls under the section 98(4) Employment Rights Act, 1996 for reasonableness (Lewis, 2013). Under section 98 (4), the employment tribunal is required to decide whether the circumstances faced by employer is under the act of reasonableness or unreasonableness (Harris, 2015). This also requires being in accordance with equity and substantial merits i.e. to apply their knowledge of industrial practices that are considered to be good and also need to ensure that the procedural for the disciplinary meeting for this case was conducted with fairness. Thus, the ground of defence for Westvey Ltd. can be by showing the procedural fairness in dealing with this misconduct issue in a reasonable way in that particular circumstance. The disciplinary meeting was held on 12 May 2017 where the allegation of fraudulent claim of expenses as gross misconduct was admitted by Ian. Also, the employer has investigated the matter to verify the fraud and has given advance notice about the disciplinary meeting, charges imposed as gross misconduct, right to accompany in the meeting and informed about the result of the meeting, if found guilty can lead to employment contract termination (Wood et al., 2014). Also, the employer has provided a written statement of dismissal decision to Ian following the disciplinary meeting on 15th of may and was advised to right of appeal against the disciplinary outcome. As Ian was dismissed on the gross misconduct which was investigated by the employer and it is also prohibited as per the company rule which regard this offence as a gross misconduct. Thus, the respondent can argue that dismissal followed a fair procedure as it was in compliance with the Acas code of practise in terms of disciplinary procedures and the employer has acted reasonably (Wood et al., 2014).
Here, the employee has been lying about the expense claims and permitting fraud this is not acceptable behaviour as it can be potentially dangerous for the company in term of financial fraud and this type of conduct can justify a dismissal decision. If possible the employer can provide evidence for employee dishonesty in claiming false expenses and can present the view that employer has reasonable grounds to believe about Ian fraudulent behaviour and consider employee guilty of gross misconduct offence after proper investigation and disciplinary approach which provides fairness of the whole procedure to arrive at a decision for employee dismissal (Mantouvalou, 2008). On the other side, the employer need to ensure that adequate warning has been given to Ian for the misconduct as it is important to consider under a fair dismissal procedure otherwise, any absence can consider it to be under unfair dismissal (Wood et al., 2017).
Moreover, the claimant did not exercise the right of appeal for the action taken against the dismissal thus; the respondent can ask the Employment tribunal judge to consider appropriate judgement and deductions towards any reward to the claimant. This also can be put forwards that the claimant has failed to act in compliance with the Acas code with regards to the disciplinary procedure followed by the employer. This can be highlighted in the case of Polkey vs. A E Dayton Services [1987] IRLR 503; [1988] ICR 142 (HL) (Thomson Reuters, 2018). This case stated some exceptional circumstances, the employer can take reasonably receive the view that normal procedural steps for the issue would be ineffectual and it could not be possible for the employer to amend the decision to dismiss the employee. The case indicated that even when Tribunal judge decides on unfair dismissal, it needs to independently make decision on award to be full or decreased by a percentage based on dismissal have occurred even in presence of a fair procedure. The respondent can present to the Employment tribunal to consider relevant deduction as per this key case. However, it is important to note that reasonableness should be satisfied by the employer in such situations (Mangan, 2015). As the respondent have provided that employer has undertaken a procedural and disciplinary meeting with fairness during the dismissal procedure of Ian this can be useful in defending the unfair dismissal claim by the claimant. Thus, as the respondent is clear and succinct related to the facts and reasons of dismissal and circumstances faced that led to the decision of termination of Ian along with the written statements that can serve as factual evidence to support the decision taken by the employer towards the employee. All these points can be Westvey Ltd. grounds of defence against the claim made by the Ian.
References
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Busby, N. (2015) Challenging Employment Tribunal Fees: R (Unison) v Lord Chancellor and another (No 2). Edinburgh Law Review, 19(2), pp. 254-259.
Corby, S. (2015) British employment tribunals: from the side-lines to centre stage. Labor History, 56(2), pp. 161-179.
Emir, A. (2014) Selwyn’s law of employment. USA: Oxford University Press.
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Harris, P. (2015) An introduction to law. UK: Cambridge University Press.
Kerr, A. (2016) The Workplace Relations Reform Project. European Labour Law Journal, 7(1), pp. 126-141.
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Mangan, D. (2015) No Longer. Not Yet. The Promise of Labour Law. King’s Law Journal, 26(1), pp. 129-150.
Mantouvalou, V. (2008) Human rights and unfair dismissal: private acts in public spaces. The Modern Law Review, 71(6), pp. 912-939.
Painter, R. and Holmes, A. (2015) Cases and materials on Employment Law. USA: Oxford University Press.
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Wood, S., Saundry, R. and Latreille, P. (2014) Analysis of the nature, extent and impact of grievance and disciplinary procedures and workplace mediation using WERS2011. Acas Research Papers, 10, pp.14.
Wood, S., Saundry, R. and Latreille, P. (2017) The management of discipline and grievances in British workplaces: the evidence from 2011 WERS. Industrial Relations Journal, 48(1), pp. 2-21.
