Category: Employment Law

Executive Summary

Effective human resource management ensures building open relationships between employees and their managers to avoid possible adverse implications. The case of Des and Sarah Cole, the owners of an independent wine merchant’s store, showed that ineffective HRM practices could lead to arguments and conflicts in the workplace that may even result in either reasonable or unreasonable dismissal. It was found that all claims employees made against their management could have been avoided with the help of sustainable HRM procedures that cater to the demands of workers but are beneficial to employers at the same time.

Introduction

The UK employment law has the following key sources: the common law and statute of European law (both in the form of European Directives and decision made by the European Court of Justice). As to the brief overview of the Contract of Employment, it is an agreement between a worker and an employer that provides a basis for the employment relationships (ACAS n.d.). The contract begins as soon as the employee accepts the offer of employment and ends when the employee is dismissed or decides to resign. The paper will focus on exploring various points associated with the contract of employment, specifically matters of dismissal, unethical practices, and overall relationships between workers and employers.

Discussion of Cases

The case study concluded with four claims from employees that Des and Sarah Cole were forced to manage in order to overcome the arguments their company had with workers. The first claim was for disability discrimination and unfair dismissal (£50,000). The second was linked to unfair dismissal due to the unreasonableness on the part of the employer (s.94-98 ERA). The third claim asked for a £20,000 settlement for withdrawal of three claims: constructive dismissal, sex discrimination, and breach of the Public Interest Disclosure Act. The last also claimed unfair dismissal and violation of Working time Regulations (£15,000).

First, it is important to establish whether unfair dismissal occurred. Under the UK employment law, if an employer dismisses a worker, he or she should provide a valid reason for justification and act reasonably in the given circumstances (Dismissal: your rights 2012). In Metroline West Ltd v. AJAJ (2015) UKEAT 0185-15-0312 the unfairness of dismissal was determined on the basis of examining the effects of the Claimant’s injury as well as whether those effects were exaggerated.

The effective date of termination for a dismissal that took place without notice is the date when the employee could reasonably find out (or finds out) about the dismissal. In the first case of Diane, there was a valid reason for the dismissal (poor physical health); moreover, employers decided to offer Diane a year’s salary as a final settlement.

Regarding Graham’s dismissal, the issue of reasonableness comes into play. He was dismissed without any notice on the basis of gross misconduct. The fact that the employee was dismissed without notice is an issue for the effective date of termination for dismissal; however, the reasonableness of the employer’s actions can be explained: Graham was earning money (small amounts) behind the employers’ back, which is at least considered improper work ethic and could be seen as misconduct.

In the case of Kelly, she decided to resign on the basis of constructive dismissal, which occurs when an employer commits a contract breach that leads to an employee’s resignation. An example can be found in Wright v. North Ayrshire Council (2013) UKEAT 0017-13-2706, in which constructive dismissal was determined on the basis of a decision whether the employer’s breach was the ‘effective cause’ of the resignation. While it is highly likely that Kelly’s car was vandalised by some of her ex-coworkers, there is no responsibility of employers to cover the cost of the repairs. In her case, it could have been more beneficial to make an insurance claim regardless of the possible premium increases and settle the matter with the help of the police.

Despite the fact that Kelly received and unsympathetic response from her employers, there is no ground for claiming sex discrimination at that point. As to the claim that the employers violated the Public Interest Disclosure Act, there could be an issue for Sarah and Des. When Kelly let them know about Graham’s fraudulent activities, she had made a protected disclosure, which meant that she should not have been subjected to any ‘detriment’ (Part IVA) (The Public Interest Disclosure Act 2013). If indeed, Sarah or Des were the ones who let Graham know about Kelly’s actions, the breach can be considered valid.

In Ralph’s case, the breach of the Working time regulations can be easily proven. Ralph had agreed to the 48-hour workweek; however, he was forced to work more than that, which contributed to his anger with the employer. The dismissal occurred; it was unreasonable because Des had acted on the basis of his feelings and not on the basis of relevant issues that could serve as explanations for the reasonableness of his actions.

Analysis of Cases

This section will focus on examining the strengths of each claim as well as the identification of defences Des and Sarah could use to defend them. In the case of Diane’s dismissal, the strength lies in her hard work before the accident occurred. In the beginning, she was signed off sick and was not discriminated against to any degree. If to provide an example from common case law, Dakin v. Brighton Marina Residential Management Company Ltd. (2013) UKEAT 0038-12-2604, decided whether a worker was unfairly paid for the holiday; however, Diane was offered a large payment, which cannot be considered discrimination.

After visiting Diane, Des and Sarah decided that she is unable to return to work when needed; however, they did not consult a healthcare specialist to assess Diane’s state nor did they communicate their fears about her unable to work. Under the Disability Discrimination Act 1995 and the Equality Act 2010, an employer has a duty to make reasonable adjustments in the workplace to cater to the needs of a particular employee (Citizens Advice 2010), which Des and Sarah did not care to do.

When it comes to the defences Des and Sarah could use to withstand the claims of Diane’s solicitor, it is worth to appeal to the disruptions, impracticality, lack of help for other employees and cost ineffectiveness associated with the workplace adjustments needed for Diane to get back to work. Also, Des and Sarah should underline the fact that they offered a payment of twenty-five thousand pounds, which is a year’s salary, as compensation for Diana and a gesture of respect to her position.

After all, Diana was not dismissed just on the basis of her disability after the accident; the company was going through a rough time and needed to fill the empty position and hire more workers to sustain the business and increase revenue. If Diana indeed had a chance to come back and start working for Des and Sarah, they should offer her an opportunity to do so in the future.

Regarding Graham’s claims of unreasonable dismissal based on the employer’s solicitor, his strengths include procedural irregularity, being dismissed without notice, and the exemplary record of conduct prior to selling wine without employers’ knowledge. However, in these points, the advantages of Graham’s case end. As the case showed, there was substantial evidence for his fraud despite him confessing to it.

Under the Employment Rights Act s.98 (2), Graham was competing against his business during work, which points to the breach of fidelity and trust given to him by Des and Sarah Cole. As employers, Des and Sarah should argue that they were placed in a position to trust their employee, and their trust was violated under the duty of Mutual Trust and Confidence (Cabrelli 2005).

With regards to the claim made by Kelly’s solicitor as to constructive dismissal, sex discrimination, and breach of the Public Interest Disclosure Act, the strength of her argument is related to her having to experience property damage due to vandalism outside the workplace and following the duty of fidelity and mutuality of trust to the employer (thus telling Des and Sarah about Graham’s actions). On the other side of the argument, the vandalism occurred outside the workplace, which points to the optional extension of the duty of care by her employers; also, she was not forced to resign but was recommended to contact the police and her insurance company concerning the property damage.

As to her claims of sex discrimination, it is important to investigate the matter of a ‘comparator,’ which means comparing the treatment of one employee with the treatment of another employee that does not (or does) have the same protected characteristics (Citizens Advice 2017). The fact that there is no strong case for the ‘comparator’ can mitigate the claim of sex discrimination altogether. For example, if other non-gender-specific words were written on her car, the claim would not have been even made.

Lastly, it is important to analyze Ralph’s claims and their advantages. The major strength if the claim is not associated with the breach of the Working time Regulations but rather with the unreasonableness of his dismissal. Ralph signed a contract with a clause in which he agreed to opt-out of his right to a maximum working week of 48 hours under the terms of the Working time regulations.

After working for almost two weeks, Ralph had decided that the workload was too much for him to handle without days off, which is understandable from a personal perspective. However, the fact that the contract included ‘opting out of the 48 hour week’ gives Sarah and Des and advantage as employers since they did not force Ralph to agree and offered a substantial payment for his work. The breach of the Working time Regulation could have occurred if Ralph was forced to sign a contract or was refused to cancel the opt-out agreement with a 7-day notice (Maximum weekly working hours n.d.). Regarding the reasonableness of Ralph’s dismissal, he can argue that Des reacted suddenly and did not give enough reasons for dismissing Ralph without notice.

Beneficial HR Practices

The establishment of beneficial HR practices within organisations is essential for ensuring that the effort of employees is recognised or that the quality of internal relationships is kept on the highest level possible (CIPD 2015). If to recommend specific HR practices that Des and Sarah could implement for the improvement of relationships with their company, it is important to focus on each employee separately to develop a set of steps that could lead to possible change. In Diana’s case, employers could have paid more attention to her needs after the injury and create an accommodative environment, in which she could function successfully and do her job.

While such accommodations tend to be expensive, the aim of the employer should be placed on retaining the employees’ current position by applying reasonable adjustments where appropriate (The Open University 2017). The Equality Act of 2010 (applied to all employees and covers those that have or have had a disability) provides an overview of reasonable adjustments such as altering work hours, assigning employees to different places of work, providing support and supervision, and other procedures that could be implemented.

Regarding Graham’s case, a good HR practice is introducing activities and training targeted at improving teamwork efforts and integrating the environment of trust. Since Graham’s and Jack undermined the trust of their employers, it is essential to make sure that the same does not occur in the future. Brown, Gray, McHardy, and Taylor (2015) provided a theoretical framework for linking employee trust and workplace performance, which means that HR practices aimed at improving relationships between employees are imperative. The case of Kelly also shows that exercising trust in the workplace is an important practice.

Moreover, her claims are evidence of the lack of fairness in the company. Fostering fairness and equity in the workplace can be achieved with the help of four strategies outlined by Erb (2016) from Entrepreneur: reaffirming that all employees receive equal opportunities, fairly handling promotions or dismissals, adding transparency to the majority of the management’s actions, and offering a fair process of appeals.

Lastly, Ralph’s case pointed to the lack of communication between the employer and the employee, which resulted in the argument and a subsequent dismissal. Among the strategies targeted at improving the quality of communication the following stand out the most:

• Investigation of communication models (e.g. Shannon’s model of the communication process);
• Addressing the challenges to communication (e.g. sociocultural differences);
• Eliminating employee silence (lack of communication);
• Introducing leadership styles that foster communication and engagement;
• Resolution of conflicts and crisis situations through collaboration (ACAS n.d.).

Conclusion

The analysis of the case study provided insights into various issues that employers can meet when the lack of attention is paid to effective and sustainable HR practices. All four claims made by employees could have been avoided if Des and Sarah had more knowledge about the Contract of Employment, the Disability Discrimination Act, the Equality Act, and the Public Interest Disclosure Act. Handling employee relations issues in a company is a matter of conduct management for both employers and workers. The cases under investigation showed that arguments between employees, their co-workers, and managers could have been avoided if better HRM practices were implemented.

Recommendations

The key recommendation for the company is improving the quality of communication and fostering change for better trust, teamwork, and the attention to the provisions outlined in the Contract of Employment. Future practices for the company should include teamwork coaching sessions, procedures for ensuring equality and fairness, as well as a careful process of hiring and training to make sure that no miscommunication occurs and leads to consequences such as arguments and dismissals. Also, the management should be more attentive to the actions of employees regarding the internal competition (e.g. selling products behind the management’s back) and property damage.

Reference List

ACAS n.d., Contracts of employment. Web.

Brown, S, Gray, D, McHardy, J & Taylor, K 2015, ‘Employee trust and workplace performance’, Journal of Economic Behaviour & Organisation, vol. 116, pp. 361-378.

Cabrelli, D 2005, ‘The implied duty of mutual trust and confidence: an emerging overarching principle?’ Indian Law Journal, vol. 34, no. 4, pp. 284-307.

CIPD 2015, From best to good practice HR: developing principles for the profession. Web.

Citizens Advice 2010, Comparators in direct discrimination cases. Web.

Citizens Advice 2017, Duty to make reasonable adjustments at work – what must employers do? Web.

Dakin v. Brighton Marina Residential Management Company Ltd. (2013) UKEAT 0038-12-2604.

Dismissal: your rights. 2012. Web.

Erb, M 2016, Four ways to foster fairness in the workplace. Web.

Maximum weekly working hours. n.d. Web.

Metroline West Ltd v. AJAJ (2015) UKEAT 0185-15-0312.

The Open University 2017, Code of good practice on the employment of disabled people. Web.

The Public Interest Disclosure Act 2013. Web.

Wright v. North Ayrshire Council (2013) UKEAT 0017-13-2706.

What possible causes of action might Barry Boozer have against the Bottomless Cup?

The Bottomless Cup leadership was aware of Manny’s behavior. While vetting and signing up employees, it is the employer’s responsibility to ensure that he or she hires the best workforce for his or her business. In this case, the Bottomless Cup failed in the vetting process and the organization is liable for its employees’ conduct. Barry’s case banks on the fact that the employees knew Manny’s behavior before his employment. It has been stated in the case study that even before Manny was employed he had been involved in a fight at the same parking lot.

Therefore, the owners of the organization should be held liable for Manny’s misconduct. According to the law, Manny’s conduct is generally viewed as negligence and recklessness. In employment law, it is the employer’s responsibility to ensure that his or her employees are acting in uttermost professional conduct. Serious misconduct occurs when an individual is involved in very erroneous acts. Manny’s behavior amounts to the violation of customers’ rights and the fact that his employers are aware of his propensity to commit such a crime, they are liable for his actions. Barry’s rights were grossly violated in o many ways during this ordeal (Cushway 45).

First of all, he was physically assaulted by an employee at the Bottomless Cup. Barry can sue the organization for assault and damages caused in the process and this will be a viable and strong case against the company. Secondly, Barry can also sue the organization for damages in terms of the time loss, while he was hospitalized and also all the pain that he underwent through the treatment process. After the incident, Barry did not only suffer from physical pain but also emotional distress. By the law, if a customer is injured while on the premises of the business, the cost of medical care should be the organization’s responsibility. Therefore, Barry should sue the bottomless Cup to settle the bills incurred at the hospital. Besides, he can sue the organization for neglect which would be a very strong case, considering that the employers were aware that their employee had anger issues.

Additional fact needed for further legal claims

In this case, there is several additional information that is not so clear, hence inhibiting the ability to make more legal claims. The case has only mentioned that the customer was assaulted at the parking lot and no further information has been given. To make more legal claims, in this case, one needs to know the cause of the assault. It is important to identify what caused or prompted Manny to overreact the way he did. What had Barry done to provoke Manny who is employed at the Bottomless Cup as a bouncer? Bouncers are employed to protect the business and to maintain order in social gatherings and some of the legal claims of assault may not apply in this case if Barry was not innocent. Further legal claims, we need to know what Barry had done or had not done to provoke the bouncer’s attention.

What arguments might the Bottomless Cup raise in its defense?

One of the most probable defenses for the Bottomless Cup is the right for employees not to be discriminated against. Employees and prospective employees have a right to be free from discrimination (Walsh 67). With this argument, the Bottom Cup had a moral and professional obligation to consider Manny for employment if he had the required qualification. It is wrong to discriminate against an employee or an applicant for a job opportunity due to their personality. Even though the employers were aware of his conduct and anger issues, it is important to consider the job requirements for the position. If Manny was qualified enough, the organization had no reason to deny him the opportunity based on his prior misconduct when he was not an employee in the company.

Considering the possibility that Barry was wrong in this case, Bottomless Cup can also argue that it was under Manny’s job description to protect the origination’s interests. Working as a bouncer means one has to confront anyone who threatens or seems to disturb peaceful parties. Regarding the issue of neglect, the Bottom Cup can defend itself by arguing that it was not responsible for its workers’ misconduct. Although this point may raise ethical concerns, it is still a viable defense line. Bottomless Cup can argue that its employees take full responsibility for their actions and that the organization does not condone such actions. However, this might be a very delicate approach, since the law has stipulated that the actions and conduct of employees are directly attributed to the company’s values.

Arguing that the employer acted on his terms, can be a viable argument for the Bottomless Cup defense. Also, the organization can defend its employment process by justifying the danger and vulnerability of its customers in such gatherings. In social gatherings, where people get drunk and careless, many disastrous outcomes are possible. To avoid this, one has to be prepared for unforeseen eventualities. This argument can justify the reason why the Bottomless Cup had hired Manny knowing about his conduct and anger issues, as it was evident from his prior actions.

Deciding the case/rationale

Determining this case requires additional information as suggested earlier. For a fair ruling and a competent judgment, one needs to have the facts about actions from both the defendant and the plaintiff. In this case, the defendant’s position is very unclear, hence making a ruling may turn out to be an unfair judgment. However, going by the facts given in the case, my ruling would find the Bottomless Cup liable for its employee’s actions. The aspect of negligence is displayed in this case, considering that the employer was aware of the employee’s code of conduct.

Hiring such an individual is proof enough to show that the employer was ignorant about the safety of the customers. In every social gathering, the safety of the customers is a priority. In my ruling, the employer will have to bear the cost and damages caused to the customer. I believe that it is within the customer’s right to be treated with respect and in such a joint. The bouncer was responsible for maintaining order at Bottomless Cup but his conduct cannot be justified. Normally, in maintaining order, he is simply supposed to throw troublemakers out of the party but not physically assault them.

Therefore, regardless of the justification that Manny might have, his actions are legally inappropriate, hence my ruling. Justice is not finding an amicable and common compromise, rather it is about making each party pay for their actions in every situation. Therefore, as far as the provided facts are concerned, Bottomless Cup is liable for its employee’s actions.

Does affirmative action result in quotas and reverse discrimination?

There have been major concerns about affirmative action, especially in employment. Many people believe that affirmative action leads to a reversed discrimination, while others see it as a voice for the weak. Depending on the angle you are looking at in affirmative action, one can be right on both assumptions. One of the major justifications of affirmative action is that it protects the weak and vulnerable. Affirmative action is mostly viewed as positive discrimination and in some countries like Canada, it is known as employment equity (Yamada 16). Such policies are known to improve employment opportunities for a member of the minority groups and women (Yamada 17).

Affirmative actions are policies that seek to stand up for the rights and privileges of the disadvantaged persons in the community including people with disabilities among other minority groups. Indeed, affirmative actions lead to reversed discrimination. While these policies protect the vulnerable in society, they also give them an advantage over the rest of the population. For instance, some policies have made it legally enforceable to have a particular percentage of female employees. This percentage must be met and failure to that a legal suit is viable. This gives women an advantage since their slots are already assured in the job market. In parking lots, the disabled do not have to push for parking spaces, since they have their already designated spaces. Affirmative action, in the real sense, is reverse discrimination giving some groups an advantage over others. However, in some instances, it is positive discrimination, especially when it comes to people with disabilities.

Works Cited

Yamada, David C. “Workplace Bullying and the Law: US Legislative Developments 2013-15.” Employee Rights and Employment Policy Journal 1.1(2015): 15-23. Print.

Walsh, David. Employment Law for Human Resource Practice (South-Western Legal Studies in Business), New York, NY: Cengage Learning, 2012. Print.

Cushway, Barry. The Employer’s Handbook 2014-15: An Essential Guide to Employment Law, Personnel Policies and Procedures. New York, NY: Kogan Page Publishers, 2014. Print.

Introduction

The UK has probably had more influence in giving the desired shape to the European Commission anti-discrimination legislation (Bernard). There have been several legislator measures and judicial pronouncements primarily in the six main strands of discrimination legislation. These strands cover sex, race, disability, sexual orientation, religion and age. The growing number of issues in these areas has given rise to an unremitting flow of litigation and judicial pronouncement. The volume of such litigation and judicial pronouncements might likely grow further when the other intended equality legislation covering flexible working, part-time worker, and fixed-term employee regulations are made a reality. This paper examines the main developments in the areas of age, religion and sexual orientation where there have been particularly significant developments in the last decades based on certain decided cases.

Law on Age discrimination

Overview

During the time when the Employment Equality (Age) Regulations 2006 came into force, a significant number of tribunal claims were pending disposition with few of them yet to reach the forum of Employment Appeal Tribunal (EAT). The Age Regulations provide apparent scope to the employers to defend their discriminatory conduct because of the presence of some controversial and uncertain elements in the Regulations. More specifically the Age Regulations provide for an objective justification defense for both direct and indirect discrimination by the employers. They also provide for several more specific exemptions from the prohibition on discrimination, the important one providing for the retirement of employees of 65 or over. There have been a number of court decisions, which are concerned with the defense of objective justification applied in the context of both indirect and direct discrimination. Apart from the court decisions there is a current legal challenge mounted by Heyday, an organization linked to Age Concern, which contends the validity of the retirement exemption, which is worth noting.

Key ideas on Age-related Discrimination

There are specific provisions in the Age Regulations that prohibit discrimination on the grounds of the age of a person who is an employee. However, an employer can defend his position against direct discrimination as well as indirect discrimination under the Age Regulations, if he can prove that he adopted the action of retiring the employee to achieve a legitimate aim in his business and that action is in proportion to the desired end. In every other type of UK discrimination legislation covering race, sex, religion or other issues there is scope for justifying only indirect discrimination in this way. It is not possible for the employer to justify direct discrimination like harassment and victimization.

Exemptions to Age Regulations

UK has implemented the EU Equal Treatment Framework Directive through the Age Regulations. The EU Framework Directive required the Regulations to establish a general rule, which provides that discrimination on grounds of age is not permissible in the work and vocational training environment. Nevertheless, article 6 of the Directive has allowed the member countries to provide for certain exemptions from this general principle. The exemptions have to be “reasonably and objectively justified by a legitimate aim”.

UK Government has relied on article 6 to incorporate several exemptions in the Regulations. Of these exemptions, the one based on the “default” retirement age of 65 is worth discussing. This exemption allows employers to make employees retire when they reach the age of 65 or over. The employers can also make the employees retire at younger normal retiring age, if they have valid grounds for justifying this action. In these cases, when the employers are able to provide justifications, they will not face any claims for age discrimination or unfair dismissal. There are certain mandatory notice provisions to make these exemptions apply. The employees are given a right to request continuance of employment and the right to appeal if their request is denied. However, this exemption does not apply to non-employees such as partners and other workers who do fall within the purview of the definition of employees.

The Heyday challenge

The default retirement age contained in the Age Regulations is one of the most controversial features of the Age Regulations. Therefore, Heyday, an organization linked to Age Concern has petitioned for judicial review proceedings in the high court to decide on the legality of this provision. The most important argument against the default retirement age is that the Government was beyond its jurisdiction to create the retirement exemption since the creation of one retirement age for all employments falls outside the scope of article 6 of the EU Directive.

Since there is the need to refer to a number of questions on the interpretation of the Framework Directive for deciding on this challenge, the high court has directed the matter to be referred to ECJ. The scope of article 6 on the allowance to governments to create exemptions needs to be revisited and decided. According to the Advocate General, making exemptions in respect of retirement did fall within the scope of the Directive like the UK’s retirement exemption; however, there should be enough justification. Based on the ECJ decision, the High Court ruled in September 2009 that though the Default Retirement Age was not unlawful when introduced in 2006, now there are compelling circumstances for the scrapping of the provision. This leads to a situation that for the time being the employers have the legal allowance to retire their employees at the age of 65. Approximately 800 employment tribunal cases were pending for this ruling across England, Scotland and Wales. These cases will no more have any legal ground to be pursued. A review of the DRA is due any time and the review will scrap the retirement age. Then the employers will be called upon to provide justification of the direct discrimination because of age and any justification will depend on the circumstances affecting the individual employees. Most of the employers may not have valid grounds to justify retrospectively their decisions to retire and hence will lose their claims.

Recent Cases on Age-related claims

The recent cases in the forum of Employment Appeal Tribunal and its decisions on redundancy schemes prove that the discrimination laws have not been effective to protect the position of the less favored and they have to fight in courts of law to have their protection from discrimination. In two of the recent cases, EAT considered the objective justification defense in the matter of operation of enhanced redundancy schemes.

Regulation 33 of Age Regulations provides for an exemption from the general rules of non-discrimination in respect of enhanced redundancy schemes. However, this exemption applies to only schemes, which resemble the statutory regime. “In MacCulloch v Imperial Chemical Industries the employer operated an enhanced scheme under which payments depended (in a complex way) on both age and length of service.” This scheme did not satisfy the requirements for the statutory exemption. Miss MacCulloch, who was aged 37 when the redundancy happened, claimed that she received unfair treatment as compared with her older colleagues under the terms of the scheme. She argued that the scheme was directly and indirectly discriminatory of her position. Even though it was recognized that there really was discrimination on grounds of age and the question to be decided was whether the discrimination could be justified. EAT thought that the tribunal had not properly considered the proportionality in the case and ordered for remission of the case to the same tribunal.

In the case of Loxley v BAE Systems, the EAT ruled on “a redundancy scheme which only paid benefits to those who were under 60 at the date of the redundancy and provided for a gradual tapering off of payments to those who were 57 or over.” The EAT thought that the employer is justified in preventing an employee from receiving a windfall on redundancy in which case the employee is in a position to claim pension payments immediately. Although there is enough justification for the act of the employer in such circumstances, the ability to make a claim for pension immediately was relevant factor for consideration. The acceptance of the trade unions of the particular scheme was a potential consideration in determining proportionality. The case was remitted to the tribunal, without any final determination by the EAT.

Default Retirement Age for partners

The decision of EAT in Seldon v Clark, Wright & Jakes is on the first case at appellate level. It provides a clear understanding to all classes of employers even though the claimant was a partner in a legal firm. This case provides the grounds on which a compulsory retirement age can be justified. The EAT had to take into account a clause in the partnership deed of the firm making the retirement of the partners at the age of 65 compulsory. EAT expressed the opinion that while all other reasons for specifying a compulsory retirement age may find justification, the firm was not in a position to support its claims that the performance of partners tended to decline at the age of 65. Therefore EAT sent back the case to the employment tribunal for a re-assessment of the evidence in that light. However, the EAT upheld the decision of the tribunal about the legitimacy of the claims of the firm behind the compulsory retirement age to:

1. ensure reasonable promotion opportunities for associates,
2. facilitate succession planning
3. limit the need to expel partners thus encouraging a collegiate atmosphere.

In the course of the proceeding, EAT has prescribed a number of principles on the justification of age discrimination. These principles form the basis for deciding future cases.

• Same test can be used for justifying direct and indirect age discrimination in the context of different employment
• The legitimate aims would still be valid justification even if they have not been considered at the relevant time.
• There is a need to justify the overall policy. It is not essential that its application to any one individual is to be justified. This principle recognizes the fact that an employer can begin to justify age discrimination only based on such genera; policy.
• The fact that the claimant consented to the policy at the time of introduction does not alter the decision of the case, though it is a relevant factor in the case.
• Although a partnership may justify a retirement age based on the collegiality principle, there can be no stereotypical assumptions in selecting the retirement age. The firm must choose the retirement age based on evidence.

Tribunal claims in Age-related Discriminations

Apart from the cases referred to EAT, a number of cases have been brought at the employment tribunal level for decision. Although, most of the claims were from people nearing retirement age, a few cases were concerned with the age of the people who have been perceived as being too young for the job they applied for. It appears that tribunals follow Age Regulations strictly according to letter of the legislation. The action of the employer who implemented a retirement of an employee on the day before the employee’s 65th birthday was not considered as within the retirement exemption.

Some of the cases show inadequate grasp of the employers of the implications of the Age Regulations. Because of this, they still follow the practice of hiring and firing employees for age-related reasons and are facing legal battles because of such behavior. There are instances where the employer advertised for “youthful enthusiasm” and the employer who terminated the services of an 18-year-old ostensibly because of capability reasons with no proper evidence to back it up were both found to have exercised unlawful discrimination. In Rainbow v Milton Keynes Council the refusal of a school to employ a 61-year old teacher on the ground that it would be uneconomical to employ older workers was found to be incompatible with justification defense by the Bedford Tribunal. The Tribunal remarked the employer had not provided sufficient evidence to prove budgetary constraints nor the employer has demonstrated that the discrimination led to substantial cost-savings.

Discrimination based on Religion or belief

UK has a complex web of over 100 pieces of legislation to deal with the issues of discrimination. The gradual accretion to the obligations under EC law and the fine-tuning of the provisions already laid down were the main reasons for such a large number of legislations. Based on the EC directives on religion, belief, sexual orientation, disability and age (2000/78) the situation in the UK concerning discrimination on the grounds of religion and belief was changed. Prior to this time, there was no prohibition against discrimination on the grounds of religion and beliefs. Nonetheless, there is an increasing amount of litigation in respect of the new strands of discrimination, some of which are dealt with below.

Dress codes while in Employment

There have been a number of recent court decisions on the rights of employees to wear jewelry and clothing of religious significance. The most publicized is that of Azmi v Kirklees Metropolitan Borough Councill. In this case the EAT held that indirect religious discrimination was justified. In this case, a school insisted on a female Muslim teacher t remove her veil whilst teaching. The school provided the justification that the veil interfered with her ability to communicate properly with the children while teaching, as the pupils were not able to see the teacher’s face. This argument was significant in supporting the school’s justification. This case was a highly publicized political case, in which the EAT upheld the decision of the Tribunal stating that there was no direct discrimination since Azmi had not been treated less favorably and the requirement not to teach with her face covered was indirect discrimination, as it could be justified by the school.

Subsequent decisions in various other cases show that the claims in this respect will depend on the facts of the individual cases and therefore the employers have the obligation to consider any justification for their acts in insisting on any dress codes carefully to avoid claims of direct and indirect discrimination.

Religious Grounds

Eweida v British Airways plc

This is another well-publicized case. Here, Ms. Eweida, who was a Christian employee, claimed that she should be permitted to wear small silver, cross which is a religious symbol outside her uniform. This request was contrary to the employment policy of British Airways, which applied restrictions on the jewelry being worn by the employees openly. The tribunal found there was no discrimination on the part of the employer. This decision has been upheld by the EAT. Ms. Eweida’s argument was that wearing the cross visibly was an important belief on religious grounds. However, the court found that this personal belief was not supportive enough for a claim under the Religion or Belief Regulations. The court also observed that the policy of BA in restricting wearing of jewelry openly did not infringe the Regulations, based on the fact it was not possible for Ms. Eweida to provide evidence that the act of BA has put a significant body of Christians to a particular disadvantage.

Glasgow City Council v McNab

In this case, the legal point to be decided was whether the action of a Catholic school under the control of the Council leads a direct discrimination when the request for an interview from an atheist teacher employed by the Council was refused. The interview was for the post of the “Principal Teacher for Pastoral Care”. “The Tribunal had been entitled to conclude that the post was not on the list of posts for which a Roman Catholic Church required a teacher to be Catholic and therefore the Council should not have presumed that the church would not have approved the appointment.” (Steptoe & Johnson) Therefore, the Council meted direct discrimination against the teacher under the provisions of Religions or Belief Regulations Act, 2003.

Conscientious objection to Terms of Employment

McClintock v Department for Constitutional Affairs

“Mr. McClintock was a magistrate who resigned when his request not to be involved in adoptions by same-sex couples was refused. His claim failed because the evidence did not show that his objection was rooted in a philosophical or religious belief. Even if it had been both the tribunal and the EAT thought that imposing a requirement that a magistrate sits on every case he or she is allocated, regardless of personal objections, was justified.” (Mills and Reeve)

Ladele v London Borough of Islington

Ms. Ladele, who is a practicing Christian and a Registrar of births, deaths and marriages was expected to conduct civil partnership ceremonies along with her other duties. Her terms were changed without consultation. Since she refused to attend her duties in connection with civil partnerships on the ground that it was against her religion, the Council took action against her. “Despite being offered a compromise (of simply signing the register and not conducting the ceremony itself) Ms. Ladele still refused to participate in the ceremonies. Eventually she was subject to disciplinary action and threatened with dismissal. She complained that she was not being supported and brought a claim for harassment and discrimination on the grounds of her religion.” (Mills and Reeve) Even though the tribunal decided in her favor, the Council chose to appeal. EAT was of the opinion that there had been no religious discrimination. EAT also did not find any direct discrimination with less favorable treatment. EAT found that the Council had behaved as it did base on her actions and not because of her religious belief and even if the Council’s response had been unreasonable in some respects, such actions could not be attributable to the religious belief of the claimant. Therefore, ETA rejected her claim that she had been subjected to harassment.

In relation to indirect discrimination, the EAT accepted that the policy of the Council in insisting the registrars to conduct civil ceremonies had a legitimate aim in seeking to promote equal opportunities and fight discrimination. This act of the Council might have put Ms. Ladele at a disadvantage as compared to others who were not holding any religious beliefs like her. However, EAT considered the action of the council as a proportionate means of achieving a legitimate aim.

Genuine occupational requirements

“In Sheridan v Prospects for People with Learning Disabilities ET Case no: 2901366 an employment tribunal found that there was religious discrimination when a charity had required one of its managers to only employ Christians and not to promote its existing non-Christian employees.” (Mills and Reeve) The tribunal ruled that the action of the charity to rely exclusively on a religious organization cannot be considered as genuine occupational requirement, since the charity did not carry out a job evaluation for every post. Therefore, it was not proportionate to consider that all persons to be employed must be Christians. This is a clear case of discrimination based on religion.

Sexual Orientation

The Sexual Discrimination Act, (SDA) 1975, which is the seminal piece of anti-discrimination legislation, prohibits discrimination on grounds of sex and marital status. This Act covers those employment matters not covered by the Equal Pay Act, 1970 in respect of recruitment, promotion, non-contractual pay matters, dismissal and other detriments to the employees. The Act was amended several times most notably to bring aspects of its provisions into line with EC directives. However, different aspects of discrimination owing to sexual orientation and sexual discrimination are governed by separate legislation. The two legislations are similar to each other in some respects. For example, both the legislations deal with discrimination under the same types.

UK introduced the principal legislation governing discrimination on the grounds of sexual orientation for the first time in the year 2003. This legislation was enacted to give effect to sexual orientation aspects of EC General Framework Directive (2000/78). “The regulations make discrimination on the grounds of sexual orientation unlawful,” (CIPD).

“Sexual orientation is defined as having a sexual attraction to:

• persons of the same sex (lesbians and gay men)
• persons of the opposite sex (heterosexual)
• persons of both sexes (bisexual).” (CIPD)

Sexual orientation discrimination is addressed on the same principles of sexual discrimination with four different types of discrimination – direct, indirect, victimization and harassment. Employment Equality (Sexual Orientation) Regulations, 2003 extends protection to employees by prohibiting discrimination based on sexual orientation in employment.

Sex Discrimination (Gender Reassignment) Regulations were introduced to give effect to the court ruling in P v S¹⁰. In this case, the court ruled for the extension of protection to persons who have opted for a “gender reassignment”. Sexual orientation covers cases of discrimination against heterosexuals, homosexuals and bisexuals. However, it has to be stated that the UK law is not consistent in the matter of protection against discrimination on grounds of sexual orientation.

Reaney v Hereford Diocesan Board of Finance covers the case of discrimination on the grounds of sexual orientation. “In that case, the employment tribunal held that where a homosexual was committed to working for the Church of England, he should expect to discuss the perceptions of homosexuality within the Church during a job interview, and that this did not constitute harassment.” (JILPTReportNo.6) The denial of employment to him even after he was found to be the preferred candidate after the competitive interview was considered an act of discrimination on the ground of sexual orientation.

In the case of Stephen English v Thomas Sanderson Limited, the Court of Appeal decided that “homophobic banter” directed at English, the heterosexual claimant can be treated as harassment under Regulation 5 of the Sexual Discrimination Regulations and treated as discrimination.

The Scottish case of MacDonald v Ministry of Defence 2 was an example of the position that existed in the UK before the recent EC directive on discrimination based on sexual orientation. This case has not considered the decision in the case of Grant v South West Trans. In this case, the argument of MacDonald was that his dismissal on the grounds of homosexuality contravened the provisions of the Sex Discrimination Act 1975. His argument was based on the reasoning a dismissal would not have arisen in the case of a woman being sexually attracted to a man and the same reasoning should be applied in his case. The dissenting opinion of Lord Prosser of the Court of Session confirmed the presence of a breach. However, the majority of the House of Lords confirmed that the provisions of the Sex Discrimination Act 1975 could not be interpreted to apply expansively to include discrimination on the grounds of sexual orientation rather than sex as has happened in this case (Pollar).

Conclusion

The UK has now more than thirty years of experience in handling anti-discrimination legislation and the resulting legal battles. Despite the efforts of the government to ensure protection to the masses, the volume of cases continues to increase and as a result, the government has to indulge in continuous amendments and modifications to the existing regime of legislation. EC directives on anti-discriminatory laws have also influenced the change of the legislative landscape in this area. The nature and number of cases the Courts, Tribunal and Appellate Tribunal handle as evidenced in this paper, signify that despite over thirty years of legislation and the commitment of so many in employing organizations and beyond, equal treatment law remains complex and unable to overcome the disadvantage of so many.

Bibliography

Bernard, A. A European Litigation Strategy: the Case of the Equal Opportunities Commission in Shaw and Moore (eds). Oxford : Calrendon, 1996.

CIPD. Sex discrimination, sexual orientation, gender reassignment and employment. 2010. Web.

JILPTReportNo.6. New Developments in Employment Discrimination Law. Tokyo: The Japan Institute for Labour Policy and Training, 2008.

Mills and Reeve. Discrimination. 2009. Web.

Pollar, David. Sexual Orientations Discrimination and Pensions. 2003. Web.

Steptoe&Johnson. Employment Law Update. 2010. Web.

Abstract

This paper analyzes the differences that exist between the public sector and the private sector. This is done by considering employment laws governing the two sectors and how they are applied in each sector. It is evident that the public sector is run using strict government regulations that are mainly guided by public opinion. On the other hand, the private sector has more flexible regulations that favor businesses and promote profit making.

Introduction

Employment law is a business concept that guides the legalities involved within a business environment. The private and the public sector are both characterized by differences. Thus, both sectors are characterized by the application and implementation of various employment laws (Bennett-Alexander & Hartman, 2011). The public sector consists of employees working for the central government or governmental agencies.

On the other hand, the private sector consists of employees working for non-governmental agencies. The private sector can be comprised of individuals owning businesses, limited partnership, and corporations. Within a country, the private sector is mainly comprised of more workers in comparison to the public sector.

Differences in public versus private sector

The public sector usually applies more employment laws in comparison to the private sector. The government, through the legislature, does the work of formulating laws that guide the private and the public sector. However, the public sector tends to apply more laws established by the central government. On the other hand, organizations in the private sector are established by individuals.

Thus, they tend to apply laws that they view as favorable for their activities (Smith & Thomas, 2007). They lack the rigorous initiatives used within public organizations in applying their laws. Thus, most of the laws they make are for their benefit and do not affect the public sector.

The employment laws made to manage the private organizations are not restrictive to encourage growth within the private sector. In many cases, the laws are made to ensure that ethics exist within the business environment. Moreover, the main objective of the laws is to ensure that businesses make profits and achieve growth. In comparison, the employment laws formulated to guide the public sector are more restrictive.

They contain specific details on how various activities should be conducted within government offices. The laws also cover all governmental organizations. Private entities vary in terms of the laws that they are required to apply.

For instance, they have fewer laws to consider, making it easier for them to conduct their activities freely. The private sector also has workplaces that are different and constantly changing. Thus, they tend to have laws that vary from workplace to workplace (Miller & Jentz, 2008).

The employment laws that guide the public sector are intended to give future protection for workers within the public service. Such workers are guaranteed a variety of benefits once they retire. For instance, they are offered insurance, income security benefits, and vacation time.

Moreover, they often get retirement benefits from the government (Miller & Jentz, 2008). In comparison, workers in the private sector are not assured of their future after retiring. Thus they are forced to rely on their savings after losing their sources of income.

Workers in the public sector are also assured of jobs. This means that they can retain their jobs for longer. The government is directly involved in the public sector. Thus, job losses occur less often because the government can cushion workers in the public sector from the loss of jobs. The government can finance a public sector corporation during troubled economic times.

In comparison, organizations in the private sector mainly depend on themselves. Workers can easily lose their jobs when faced with harsh economic times. The government, in many cases, is more stable than the private sector because it is affected less by economic conditions that affect the private sector (Anthony, 2012). Thus, the employment laws that are established guarantee workers in the public sector of their jobs.

The employment laws within the public sector also ensure that the jobs given are permanent. Thus, workers in the public sector are guaranteed of their current positions and promotions in the future. In comparison, the employment laws established within the private sector cannot assure a worker of their position within a company.

The employee can easily lose the job. In the public sector, loss of employment involves various established procedures (Anthony, 2012). For instance, a public service employee can lose his or her job if they are involved in illegal activities, or they make errors that are considered to be very serious within the workplace.

Employment laws in the private sector usually lead to increased competition among workers. It is for this reason that most workers within the private sector are well educated and experienced. Having more academic credentials and experience ensures that a worker in the private sector retains a job. In the public sector, employment laws prevent constant changes in the workforce. The career paths of many public workers may stagnate.

Competition within the public service is also nonexistent. When it comes to employment, all sectors of the public service are considered to be equal. This may be attributed to the fact that most jobs within the public sector are guided by the same employment law (Barnard, 2012).

Employment laws guiding the private sector are also characterized by strict controls in comparison to the laws applied within the public sector. This is usually done to encourage efficiency within the private sector. These laws describe the activities carried out within organizations in the private sector (Barnard, 2012). Thus, the private sector, in many cases, provides better services in comparison to public service.

The private sector is the best choice for higher wages, despite its limitations enumerated above. In public service, the salaries earned are usually constant. Moreover, salary increases do not occur often. It takes a long time for salaries to be increased because such a decision will have to go through many bureaucratic processes (Anthony, 2012).

Moreover, the legislature and other governmental committees will also be involved in determining any salary increase. This can be attributed to dependence on public opinion. The public sector relies on taxes. Thus it is hard to increase salaries if the public does not view it as necessary. In comparison, many workers within the private sector enjoy higher salaries (Anthony, 2012).

Conclusion

In conclusion, many differences exist between the public sector and the private sector. These differences usually result from the employment laws governing these two sectors. While there are similar employment laws that guide both public and private sectors, some laws only exist within the private sector. Thus, these differences affect the output witnessed in both sectors and how employees are treated.

References

Anthony, G. (2012). UK public law & European law. Oxford, UK: Hart Publishing.

Barnard, C. (2012). EU employment law. Oxford, UK: Oxford University Press.

Bennett-Alexander, D., & Hartman, L. P. (2011). Employment law for business (7th ed.). Boston, MA: McGraw- Hill/Irwin.

Miller, R. L., & Jentz, G. A. (2008). Business law today: the essentials 8th ed). Mason, OH: South-Western Cengage Learning.

Smith, I. T., & Thomas, G. (2007). Smith & Thomas employment law (9th ed.). Oxford: Oxford University Press.

In different countries of the world, several governmental agencies have been established to regulate working shifts plus overtime working hours for civil servants and individuals working in private institutions. This was done with regard to the complaints from various workers who considered themselves as being overworked. Some however, complained about working for extra hours while being paid a minimum salary. They supported their ideas with some of the quotes from the reserves of law. These quotes talked about the rights of workers which were never fulfilled. This document will focus on the edicts of governmental agencies in the United States and regulatory laws ascertained with regard to working in shifts and overtime.

The Employment Standard Administration is a US department of labor that was set up with special regard to safer, proper and recommended labor practices. Through the Fair Labor Standards Act (FLSA) it was dictated that each employee working on overtime should be paid at an hourly rate. Companies that were not developed did not carry on with overtime working as they lacked capital. This was majorly done to discourage various cases of no payment during overtime working. This was the role of employers to ensure that the workers are paid their part. The employees are paid at an hourly rate for compensation of the service which should be one and a half times the employees’ rate of regular pay. However, the general public health in hospitals and police officers is exempted from this practice (Muecke, 2005).

The Joint Initiative for Corporate Accountability and Workers Rights was formed in a program of collaborative work. In the United States supplier factories, workers who refused to work overnight were always harassed. Workers never wanted extra working hours since they suffered both health wise and socially. They came across many problems associated with long working hours. In order to counteract these negative effects, the working time was regulated. This entailed open declaration of the removal of overtime working hours. The health effects associated with overtime working and during night shifts were also made known to the public (Akerstedt, 1990).

The Occupation Health and Safety Administration is a National Input for Occupational Safety organization that deals with creation of vast rules and regulations in different areas. They are charged with protecting the rights of general workers. The OSHA has set up rules and regulations to counteract the overtime limits. OSHA has offered guidelines regarding the working during overtimes. It suggests that meals such as lunch as well as breaks should be given to the employers as additional foods. He also comments that employers and workers to rest and then test themselves for the availability of cases of fatigue and then seek for quick medical attention.

OSHA determined some of the health impacts caused by working overtime to the health of an individual. Overtime working raises the cases of fatigue among individuals. The person overworked feels be very exhausted throughout the remaining times of the day. The number of injuries might nevertheless augment on the involved person’s body. The individual might also have periods of serious anxiety and discomfort. Pain may also be a strong impact that can be imparted on the human beings well being. It however increases the cases and rates of sleepiness and also increases irritability to the workers. There is lack of motivation towards working. He has however noted that there needs makes workers to become susceptible towards illness (Costa, 1996)

The Metropolitan Transportation authority in New York is a government organization that determines the amount of salary paid to each worker in all works done overtime. The agency guards the rights of workers. Stern measures are always taken towards institutions that do not consider the welfare of employees by compensating for the jobs done. These authorities are also and always in charge of the various institutions undertaken in this different regions. In addition to that, stern warnings were given to the institutions in advance and these cases dealt with seriously.

Some agencies sometimes insist on working overtime so that some specific objectives are accrued. First and foremost with the case of policemen, during the shift they may pursue and arrest a suspect of a particular incident. They should also work in shifts so that they provide security to citizens and also receive quick alerts of cases related to theft. These cases happen especially at night when all activities are dormant. Police officers are always re-allocated to different districts at different times (Akerstedt & Torsvall, 1981).

In hospitals, the Texas Board of Nursing organizes and allocates different health personnel at various hospitalized institutions. This is done to ensure that continuous and greater care is given to the patients. This also includes night shifts. Since time for sickness of an individual is not verified, there must be a need for flexibility of working hours (Belanoff, Gross, Yager & Schatzberg, 2001).

In a business scenario, whenever the demand for the manufactured merchandise is high, a double effort of labor is needed to meet the needs of the consumers. Those workers accused of absenteeism might end up losing the job. If employees work hard with togetherness, then a large profit is realized. Therefore, there is need for flexibility in working hours for the great competitive companies (Folkard & Tucker, 2003).

The Medicare Payment Advisory Commission (MEDIPAC) discourages working during irregular hours as they attribute this to ill-health among individuals in the society. A particular pattern of work has been attributed to cause illness to persons. Health illnesses have been pointed out to be highly accountable from the long working hours without rest. Specific individuals acquire difficulties related to health through smoking and generally the abuse of drugs. Most of the people apply drugs to boost their alertness throughout the night (Folkard & Tucker, 2003).

The Tennessee Valley Authority (TVA) has set up rules to prevent the managers from forcing their members of staff to work excessively for long hours. They openly eliminated overtime working. These laws play a role in safeguarding the humanitarian part of their well being. They also protect persons from getting ill and thus their productive potentials are preserved. Through this, their life when employed is as prolonged thus long services offered to the nations. They consequently promote the economic growth of the nations (Costa, 1996).

In South America, individual workers who work overtime are charged. A certain amount of capital is incriminated on the employer as well as the employee. This capital is termed as tax. The tax charged depends on the total time spend especially per year, on overtime.

Reference List

Akerstedt, T. (1990). Psychological and psychophysiological effects of shift work. Scandinavian Journal of Work, Environment and Health, 16(1), 67-73.

Akerstedt, T., and Torsvall L., (1981). Shift work: Shift-dependent well-being and individual differences. Ergonomics, 24(4), 265-273

Belanoff, J. K., Gross, K., Yager, A., and Schatzberg, A. F. (2001) Corticosteroids and cognition. Journal of psychiatric research, 35, 125-137.

Costa, G. (1996). The impact of shift and night work on health. Applied Ergonomics, 27(1), 9-16.

Folkard, S., and Tucker, P. (2003). Shift work, safety and productivity. Occupational medicine, 53(2), 95-101.

Muecke, S. (2005). Effects of rotating night shifts: literature review. Journal of Advanced Nursing. 50(4), 433-439.

Introduction

There are several issues in this case of Medicaments plc Company. Foremost, there is the problem of corporate governance within the management of the firm which is currently under the leadership of Mike Croft.

The second issue relates to non-compliance of the company with the UK corporate governance code in which we realize there have been few instances in which the company has failed to comply with the requirements of the code. Finally, other underlying issues in the financial department have to do with auditing and implementation of recommendations by the board of directors in which some of the recommendations are not reviewed.

Discussion

Corporate Governance Issues and Recommendation

Corporate governance can be defined as laws and rules within which any business is operated; it also involves all processes of controlling and operating the business including the issues of internal affairs (Colley, 2003). Several factors may determine the level of corporate governance within an organization and accountability is one of the factors that can be used as a yardstick to determine and predict the level of corporate governance. Generally, a firm that has developed a mechanism of ensuring proper accountability and transparency portrays an example of good corporate governance (Colley, 2003).

In this case study, we find that Croft, the CEO of the Medicaments plc Company is the one who sets the number of salary payments for all other board members and his salary as well. This is a clear situation in which there is poor corporate governance in the firm which is unjustified especially since the Company’s majority shareholder is the public.

According to the Company’s Act 2006, “the remuneration of the directors shall be determined by the directors” in the properly managed company; this means that the board of directors has the mandate to determine and set the salary package of the CEO of any firm (Legislation.gov.uk, 2011). Furthermore, the board members should jointly decide their pay since one of the functions of the board of directors is to set their salary and compensation.

Usually, the procedure followed involves the board of directors choosing a committee which is given the duty to set the salary of the CEO (Colley, 2003) but this is not the case in Medicaments Company since we can see that Croft is the one who has taken upon himself to determine the salary of the board members. This a clear evidence of poor corporate governance since the board directors are curtailed in exercising their duties fully (Amdur and Banket, 2002).

In addition, Medicaments plc Company is seen to be poorly managed in the manner by which the board of directors is appointed. In this case, the two non-executive directors were chosen and appointed under the influence of Croft.

According to the Company’s Act regulations, a well-managed company should be run by an effective board of directors who will have the responsibility of competitively appointing senior personnel. In doing so the board of directors should ensure that the non-executive board members appointed are impartial and performs their intended role of ensuring accountability of the firm (Amdur and Banket, 2002).

Besides that, Medicament Company has additional problems that have to do with corporate governance and ethics as far as the appointment of some board members is concerned, notably Angela King. In this case, there is a clear breach of ethics and general corporate governance regulations since the appointment of Angela King in the boardrooms of the two Companies is a clear act of conflict of interest.

This might have adverse consequences since Angela in her capacity as a board member might use her influence to manipulate the decisions of Medicament to have Zucipharmicals Inc continue receiving contracts. According to Ian, the regulations of ethic governance demand that no conflict of interest should exist in areas of business transactions and employees recruitment among others (2011).

According to the case study “no review of board policies and effectiveness is carried out”, what this implies is that there is a lack of proper corporate management which will mean that the Company is not run by the board members. To empower the board members Medicaments plc Company management must implement any recommendation that the board members of the Company might have made since they are acting as the representatives of the stakeholder’s interests.

UK Corporate Code Issues and Recommendation

The UK Corporate Governance Code is a summary of regulations that summarizes the principles that have been clearly outlined for good corporate management (Webster, 2010). Mostly, the code is designed for Companies that intend to have their shares listed in the London stock exchange; as such Medicament Company must also ensure its compliance with this code if it has to continue trading its shares at the London Stock Exchange.

According to this code, all the publicly listed companies should strictly adhere and fully comply with its various rules and regulations; in fact, all listed companies are regularly supposed to disclose in detail whether they are complying with the code or not (Webster, 2010). This means that companies are supposed to make a report of their compliance which details their nature, level of compliance, and reasons of non-compliance if any. In case of compliance with the code, for instance, companies are supposed to explain how they have adhered to the set codes.

There are three major and basic recommendations outlined by the UK Corporate Governance Code; one is that there should be a separation of the CEO and chairmanship duties in a publicly listed Company (Webster, 2010). However, according to the case study, these regulations have not been adhered to by the Medicaments plc Company because Croft is both the CEO and the chairman of the board; this is a clear breach of the code.

Secondly, the UK corporate code also recommends that a company’s board of directors be made up of a minimum of three non-executive directors to ensure there are fresh ideas within the Company (Webster, 2010). Again on this second regulation Medicaments Company has not adhered to the UK corporate code recommendation; this is because the company’s board of directors consists of five executive directors and only two non-executive directors which are below the recommended number.

The third regulation and recommendation according to the code are that every listed company should have a board that has an audit committee that consists of non-executive directors as well (Webster, 2010). Based on the case study, Medicament Company has no internal audit department that it has put in place; instead, it relies on monitoring of internal controls as its excuse for not instituting an audit department.

This again is a clear breach of UK corporate code as it is very clear and emphatic on why all publicly listed Companies should have an audit department in place. To an extent, Medicaments plc Company may have complied with this third regulation since we realize that they outsource external auditors to undertake auditing tasks.

Conclusion and recommendations

It is the responsibility of the company’s board of directors to ensure there is good corporate governance within the Company. This they can achieve by establishing proper procedures of management that best represents shareholders’ interests in the company; this is because the board of directors of any given Company is answerable to both shareholders and the Company itself (Amdur and Banket, 2002). To ensure accountability and transparency, Medicaments plc Company should put in place procedures of appointing the board members according to relevant laws to have the interests of shareholders well represented.

Additionally, the board of directors of this Company must constitute the various committees and departments as required by law which we have discussed above (Tricker and Mallin, 2010); these committees and departments are essential in overseeing good corporate governance. I recommend that this be done by the Company’s board through fair and open established standards. In the financial department, for instance, an audit committee should be established to ensure there is an internal control system. I also recommend that the various committees be made up of external personnel to act as the Company’s watchdogs.

Issues

Several issues are evident in this case study. These are issues to do with gender, age, pay, discrimination, and promotion at the workplace. In our discussion, we shall seek to undertake proper scrutiny of the facts that will inform justification of legality of promoting personnel in this Company.

To elaborate on the points that relate to this case there are four issues that we need to discuss in this case scenario. One is the issue that relates to employee promotion discrimination based on their age that Susan claims to be the case. Secondly, there is the issue of breach of the Equal Pay Act, which Joe claims have been breached under the circumstances and finally, there are issues to do with favoritism at the workplace that Joe also claims to be the case.

Based on the case scenario it is clear that employees like Susan and Joe feel that there have been instances of discrimination and unfairness such as the one discussed above and based on promotion when considering their training and commitment to the job. The validity of these claims and the legal position of relevant laws is what shall be our focus as we discuss these issues.

The second issue is the problem of discrimination and harassment, it is important to understand that employees are an asset to the company and therefore they should be given equal and fair treatment in terms of job allocation, payment, and job promotion at the workplace.

Applicable law

In the determination of the legality of the issues that Medicaments is being accused of we shall rely on three fundamental laws; the Equal Pay Act, 1970, other relevant legislation that governs labor laws, and finally the general employment policies that apply in such cases.

Analysis

The case of Joe

As a general rule, various employee-related statutes and employment laws categorically condemn and prohibit any employers from practicing acts of discrimination against job applicants or employees promotion based on; ethnicity, age, gender, and disability among others (Bononilawgroup.com, 2011).

The Equal Pay Act, 1970 for instance is very clear regarding issues of discrimination and related favoritism among employees at the workplace and states that this law is “An Act to prevent discrimination, as regards terms and conditions of employment, between men and women” (Legislation.gov.uk, 2011). According to this Act, there are three conditions that an employee has to certify before they can claim discrimination under this Act; these are

1. that the work done by the claimant is the same, or broadly the same, as the other employee.
2. that the work done by the claimant is of equal value to that of the other employee.
3. that the work done by the claimant is rated the same as that of the other employee” (Legislation.gov.uk, 2011).

Now based on the case scenario let us determine if this is the case and whether indeed Joe can claim that Medicament has breached this law. One, it is clear that Helen despite her late entrance to the Company is already earning more than Joe by £3000, what is more, is that she is already being promoted to higher management levels than Joe even though they both appear to have been trainees in Medicament.

This I would say is enough grounds on which one can cite employee workplace discriminations. In any case, the Equal Pay Act in essence states that discrimination is probable where employees appear to perform similar duties but from which they are compensated differently for no other reason than their gender differences; under the circumstances, this appears to be the case. So on this basis of discrimination, it would appear that Medicament has indeed breached the Equal Pay Act regulations; but there is also a small fact against Joe that can be used by the Company as its defense.

The fact that Joe is indicated to have failed in his exams can be explained by Medicaments management as the reason for passing his promotions in favor of Helen, but this would still not explain the reason why Helen has been earning more than Joe despite her coming late to the organization. So it is likely that Joe’s case will prevail.

The Case of Susan

In the same way, it appears that Susan too has been discriminated against, but on this case probably based on age rather than gender; this is because both Susan and Helen are of the same gender. Based on the case study it is clear that Helen does earn more than Susan despite her late entrance into the organization for reasons that the Company cannot yet justify and neither can Helen’s promotions be justified either. Again based on the grounds of instituting discriminations under the Equal Pay Act, 1970 it is clear that Susan has indeed been discriminated against given that Helen’s job description does not exceed that of Susan.

But the ground that Susan intends to sue the Company is what would otherwise be referred to as “repudiatory breach of contract” which is the same as constructive dismissal (Compactlaw.co.uk. 2011).

To prove this has happened, the law requires that a person must prove three aspects to be existent in their work environment; one, that employee’s actions amount to deliberate frustrations on the part of the employee, which directly de-motivated the employee and finally that such actions are in contravention to the existing laws. Based on the circumstances of the case study this would appear to be the case which would mean that Susan might indeed prevail in suing the Company on this ground (Compactlaw.co.uk. 2011).

Negligence Law

Issue

Two pertinent issues pertain to this case scenario; one is the issue of negligence by the Medicament Company to repair the facility fence which is seen to have contributed to Sam’s accident. Secondly, there is the issue of psychological suffering that Kim is seen to be suffering from for having witnessed the gruesome accident. Finally, there is the issue of trespassing which is also seen to be the case because the victim, in this case, was trespassing at the time.

Applicable law

Negligence is described as a behavior or demeanor which is thought to have contributed to the injury of the plaintiff and involves direct or indirect jeopardy that endangers a person’s life (Lillywhite, 2011). By tort laws, negligence can be determined to have occurred in an accident through inference alone and without necessarily being directly linked to the cause of the accident (Lillywhite, 2011).

To determine whether negligence liability applies in a given the court will rely on a set of four conditions that must be satisfied to have been present at the time of the accident.

One, that the accident wouldn’t have occurred without the element of negligence which implies that a duty of care was owed but which was neglected by the defendant, two, that negligence is the probable cause, three, that an instrument controlled by the defendant resulted to the accident and finally that the plaintiff did not contribute at all to the accident (Saunders, 2009).

Based on the circumstances of the accident let us now determine if indeed negligence liability can be instated in this case against Medicament company it would appear that the accident does indeed satisfy all the conditions under which negligence can be claimed to have been the cause.

This is because were it not for the disrepair that existed at the facility then the accident would not have occurred, secondly an instrument controlled by the defendant was the sole and direct cause of the accident in this case which despite the trespassing cannot be attributed to the victim. In any case, the failure to perform one’s duty and responsibility can also be termed as a breach of duty (Smith, 2006). This is because the defendant failed to “avoid acts or omissions which can reasonably be foreseen”, which is the negligent aspect that directly led to the injury in question.

Additionally, Kim might also sue her employer the Medicament for emotional distress under the tenets of tort laws which is the same as what Sam would be suing the Company for. However, as a general rule of thumb, the law is very hesitant in awarding damages that are claimed based on psychiatric injury as it is impossible to identify and prevent fraudulent claims; it is, therefore, unlikely that the court would award damages to Kim on that basis.

References

Amdur, R. J. & Banket, A.E. 2002. Institutional Review Board: Management and function. Massachusetts: Jones & Bartlett learning.

Bononi law group. 2011. Discrimination. An over view. Web.

Colley, J. L. 2003. Corporate Governance. Washington, DC: McGraw Hill Publishers. Compactlaw. Web.

Christian, P. 2010. Employment Law Solution. Web.

Ian, D. 2011. Corporate Governance Statement. Web.

Legislation. 2011. Equal Pay Act, 1970. Web.

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Webster, M. 2010. UK Corporate Governance Code. Ohio: LexisNexis press.

Introduction

During a market expansion, a business conducts assessments of its current market to identify the unreached markets. As argued by Cascio (2013), the primary aim of the market development strategy is to attain revenue growth through utilizing opportunities that are readily available in the markets (both local and foreign). Adhering to market expansion procedures attracts the delivery of new competencies in the current market as well as the prospective foreign for the existing products and services. As earlier stated in the video chat, employment laws play an important role in determining the success of an expansion in a foreign market. This memo aims to highlight the four primary employment laws that your company should adhere to as it expands into India. In addition, this memo will also address the consequences of noncompliance with those laws.

Current Employment Law in India

The mentioned 20 percent increase of workforce requires adherence to local employment laws. Failure to adhere to these laws, your organization may face a greater challenge of attaining the desired objectives in the foreign market. On the other hand, adhering to these laws, your organization will achieve a competitive advantage in the marketplace. In India, laws that relate to employment are mainly classified under the industrial law. Here, laws that protect employees have been developed as a result of the increased civic education on human rights (Cascio, 2013). For this reason, the industrial relations have embraced a complex relationship between employees, employers, and the central government. Most of these laws focus on the employment terms as well as the situation of labor of the employees. In India, the increasing employee expectations have resulted in the weakening of authority, more attention to work ethics and an increased number of activists in the employment sector. Therefore, to retain employees in India, it is important to adhere to the set employment laws.

India’s Employment Laws

In India, the employment laws are primarily divided into five sections. These sections include social security, Industrial relation, working condition and the minimum wedge (Cascio, 2013). All these employment laws are base on India’s constitution and recommendations made at the International Labor Organization conventions (ILO). In India, the labor laws are used to regulate employment practices by ensuring there is a high degree of employee’s protection. Concerning its significance, foreign investors are required to conform to respective contract laws by adhering to the employment laws at all times. The Indian employment regulations belong to two categories: the Factories Act and the Shops and Establishment Act.

Factories Act (1948)

In India, all factories are controlled by the requirements of the 1948 Factories Act. Under this Act, all industries that have employed more than ten people and conduct industrial business practices using electricity fall under factories. The Factories Act requires all employees to provide safety, a healthy working place, welfare and leaves for employees who work in their factories. The factory Act emphasizes not only the safety but also the welfare and the general health of employees. Since your company has a level of production activities, it is necessary to adhere to the said legal requirement (Cascio, 2013). Adhering to legal requirements is important because it is essential for consolidating the regulations that relate to health and safety provisions. Also, the Factories Act safeguards employees against using or handling substances that are a health hazard through putting in place emergency measures.

Shops and Establishment Act

This Act is a regulation of the state. In India, each state has specific regulations for this act. The primary objective of the Shops and Establishment Act is to offer rights to not only office workers but also the unofficial workers. This regulation applies to all individuals who are in establishments that do not have wages. With the existence of many legislations, which are aimed to protect workers, it is worth noting that India highly regards its workforce (Cascio, 2013). For this reason, for a company to operate in India, it should work in line with the established legal provisions.

Industrial Disputes Act (1947)

The primary role of the Industrial Disputes Act (1947) is to investigate and settle industrial disputes. The various industrial disputes to be solved through this act relate to retrenchments and layoff of employees. The Industrial Disputes Act provides a mechanism for reconciling and the adjudication of conflicts between workers and their employers (Cascio, 2013). Under this Act, the industrial responsibilities include business trade and production among others. In addition, the Industrial Disputes Act (1947) puts across situations under which businesses work under before the termination of employment or layoffs for employees who have worked for less than a year. Under this Act, employees are given a certain amount of time to write a notice that indicates the reasons for layoffs. Also, this act emphasizes the employee should be compensated in15 days after termination of employment.

Maternity Benefit Act (1961)

In India, this Act controls women’s employment in particular establishments for a given period prior to and after birth. Under this provision, women are given certain benefits. However, the Maternity Benefit Act (1961) does not apply to factories and other establishments. Under this Act, female employees working in the stated establishments for 80 days that follow the delivery date are given maternity leaves under the Maternity Benefit Act (1961). For this reason, it is important for pregnant women should benefit from medical bonuses and nursing leaves (Cascio, 2013). Because of the possibility of having pregnant workers in the new company, it is important to adhere to the Maternity Benefit Act (1961). Failure to adhere to this act, the new venture may face challenges such as legal suits.

The Employee’s Compensation Act (1923)

The Employee’s Compensation Act (1923) requires employers to compensate their employees in case of accidents. However, under this act, the accidents must have occurred in the course working periods and should be in line with the provisions available in the act. In India, employees are required to hand over the statement to the commissioner. Handing over this statement takes place within 30 days after receiving the notice. In case of the death of an employee, employers have the responsibility to investigate the accident. In determining that the accident took place under The Employee’s Compensation Act (1923), employers are required to compensate their employees.

Consequences of Noncompliance with the Employment Laws in India

In recent years, American corporations have invested up to approximately 19 billion USD in India. Even though the Indian markets have a wide range of opportunities, there is a need to adhere to all the employment rules of operation. In India, the compliance with the employment laws is always overlooked. As a result of this factor, these investors are always faced with organizational challenges (Cascio, 2013). Consequences associated with noncompliance with the employment laws come mainly because of three main reasons: availability of more jobs than employees; availability of many foreign firms; and the poaching of employees.

The first consequence of noncompliance is the adverse effects of employee retention. While considering to venture your business in India it is important to underpin the value of the skilled employees in India. Failure to comply with the employment laws, employee retention will not be achieved. To be able to maintain employees in Indian workplaces, there is a need to adhere to the employment laws to the latter. Secondly, based on the fact that there are many other foreign investors, both skilled and unskilled employees have many options at their disposal (Cascio, 2013). The availability of many foreign companies attracts junior employees using your company as a resume booster in getting new jobs. In line with such discrepancies, adhering to employment laws to maintain these employees is necessary. Lastly, the availability of many jobs is risky in the sense that there is increased poaching. Other companies are increasingly poaching employees from foreign firms. Adhering to the employment laws will ensure that your firm retain its workers.

When foreign companies do not adhere to the employment laws, they are faced with the challenge of not only attracting but also retaining the top employees in India. Therefore, before moving into the Indian market, it is necessary to carefully draft employment contracts such as the nondisclosure, privacy, and non-compete provisions (Cascio, 2013). The typical enforceable legal provisions comprise of the extent and scope of employment, the geographical boundaries, and term of employment (in most cases it is 3 years).

Reference

Cascio, W. F. (2013). Managing human resources: Productivity, quality of work life, profits (9th Ed.). Boston: McGraw-Hill/Irwin

Introduction

Where there is a contract of employment there is a relationship between employer and employee. This relationship imposes certain rights and duties on each party. It is important to distinguish whether a relationship is that of employer/employee or employer and independent contractor for several reasons. There are obligations of common law, for instance, an employer’s vicarious liability for the torts of his employee.

Main text

The general rule under vicarious liability is that the employer should be held responsible for the acts of his employee committed in the due course of employment. In the given scenario by ABC apartment company, where a manager used a key to open one of the apartments in the complex during his off duty time and enter a tenant’s apartment and rape her is rather personal, but there is negligence on the part of the company (employer) and therefore the employer will be held responsible for the act committed by the manager even though he was off duty.

This is proved by the fact that the manager who was off duty should not have been allowed to have access to the key during the time when he is off. The key is the property of the company and whenever an employee has completed his or her shift (working time) he or she must return the property of the company to safe custody of such property within the company’s premises.

Cases

In Limpus v. London General Omni bus Co. (1862) a bus driver whilst racing a bus caused an accident. His employers were held liable because he was doing what he was employed to do even though in an improper way.

In the strict sense of the meaning, a person is an employee if his employer retains a right to control not only the work he does, but also how he does it. The test is the right of control, not how much control was infact exercised.

However, exceptions to the rule of vicarious liability exist. The employer cannot be held responsible by an act of violence by the employee outside the scope of employment and the employer will not be liable.

In Warren v. Henley (1948) 2 All E.R 935 a petrol pump attendant assaulted a customer during an argument over payment for petrol.It was held that the employer was not liable.

On its part ABC Apartment company had failed to ensure that the conduct of the Manager even though on off-duty was not linked to the company. Getting access to the company’s key which he used to open the apartment attributes to negligence on the part of the company. It is possible that the manager’s conduct was no way related to the company but his presence and access to the apartment’s keys is a question to be determined on the company’s negligence.

In Rose v. Plenty (a976) (1WLR141) D was a milkman. His employer did everything possible to stop the common practice of taking young children in the van and paying them to help deliver the milk. A notice at the depot said “Children must not in any circumstances be employed by you in the performance of your duties” Contrary to this instruction.D employed P. While moving from one delivery point to another the boy had one leg dangling from the van so that he could jump off quickly. D drove negligently and Ps foot was crushed between the van and the Kerb.It was held that Ds employer was liable because D had been acting within the scope of his employment.

In Panorama Development (Guild Ford) limited v.Fidelis Furnishings Fabrics Limited (1971) 2 QB 711), a company secretary fraudulently hired cars for his own use without the knowledge of the Managing Director. The company secretary routinely enters into contracts in the company’s name and has administrative responsibilities that would give apparent authority to hire cars. The company was held liable.

In essence of it is determined that the act of an employee is connected to the employer in one way to the other, the employer is held responsible.

As a company owning the apartments they have a duty of care to the tenants. Little was done by the company in ensuring that there is enough security. The ABC Apartment company had provided no adequate security system to the tenants occupying their premises. The Omissions of this requirement makes the company responsible to the act meted out to the tenant.

In Donoghue v. Stevenson (1932) Ac 562 (HL) Lord Atkin held “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor”

In this regard ABC apartment will be held responsible for their omission to provide adequate security to their premises occupied by the tenants. In Hedley Bryne Co.Ltd v. Heller Partners Ltd (1964) Ac 465 (HL) a duty of care was recognized. It was held that the law will imply a duty of care when a party seeking information from a party possessed of a special skill trusts him to exercise due care and that a negligent, though honest, misrepresentation in breach of this duty may give rise to an action for damages a part from contract or fiduciary relationship. Lord Pearce held” How wide the sphere of the duty of care in negligence is to be held laid depends ultimately upon the court’s assessment of the demands of society for protection from the carelessness of others. (ibid)

Finally the Company, (ABC Apartment Company) also failed to investigate the past conduct of the said manager. The company had the responsibility of duly investigating a person before they hire him. This will assist the company in ensuring that they hire a right person to a carry out the duties of the company efficiently. The company’s not knowing that the manager had a criminal record cannot be a ground for its defense.

Conclusion

In general in the tenant in the scenario has a right of bringing a civil suit against ABC Apartment Company for compensatory and punitive damages owing to the fact the company failed to take due care in ensuring that the safety of employees within their premises in safeguarded. The company also failed to ensure that the property (key) of the company is kept within the premises and it is not carried by any employee when he/she is off-duty.

Bibliography

1. Comparative Labor Law – Bridging the Past and the Future (with Benjamin Aaron), 29 Comparative Labor Law & Policy Journal 377-91(2007).
2. Rethinking Labor Law: Employment Protections for Boundary less Workers, in Boundaries and Frontiers of Labor Law (edited by Guy Davidov and Brian Languille, Hart Publishing, 2006).
3. The New Face of Employment Discrimination, in Feminism Confronts Homo Economicus (edited by Martha Fineman and Terence Dougherty, Ithaca, NY: Cornell University Press, 2005.
4. Legal Regulation of the Changing Contract of Employment, 14 Cornell Journal of Law and Public Policy 563-79 (2004).
5. Employment Arbitration under the Federal Arbitration Act, in Employment Dispute Resolution and Worker Rights in the Changing Workplace (edited by Jeffrey Keefe and Adrienne Eaton, Champaign, IL: Industrial Relations Research Association, 1999).

Employment laws have been used for a long time to safeguard the interests of employees and employers at the workplace. Mobile executives encounter mixed employment laws depending on the locations they are posted. However, the market forces of demand and supply tend to override the existing employment laws. The latter explains why civil rights groups often take the place of litigation measures in order to address job discrimination at the workplace.

According to Schwartz and Lucas (2012), there has been a sudden upsurge of multinational corporations. As a result, most modern company executives travel a lot and some of them even work overseas in order to propel the objectives of their respective organizations. The article explores workplace implications and the associated employment laws for company executives who relocate and work in remote locations. The authors begin by exploring the United States employment law. Second, the effect of the existing employment laws on the local and overseas executives has been discussed. It is interesting to mention that the US employment laws tend to vary for the two categories of executives. There is a need to amend such laws bearing in mind that all company executives do not experience similar working conditions. For instance, some workplace locations can be considered to be hardship zones. Therefore, allowances and other fringe benefits should vary accordingly.

On the other hand, Curran and Quinn (2012) discuss various attitudes that employees and employers have towards employment laws. The authors have discussed this subject matter in relation to Irish employment law. Moreover, a comparative approach has been used to deliver the objectives of the paper. Two different forms of employment laws have been used to gauge the impact of information availed to employees and race equality. From the article, it is evident that employment law in Ireland is not uniform across the board. For example, factors such as race, gender, and information available to employees play critical roles in shaping the nature of employment laws that are adopted by most organizations.

The authors have also used semi-structured interviews to obtain the most valid and first-hand data from the individual experiences of employees and employers. The empirical findings also indicate that legislation does not play the basic role of initiating change that is required in the existing employment laws. Moreover, the labor market is generally the key factor that determines the employment wellbeing of the entire workforce. In other words, market-prompted voluntarism overrides the power of existing legislation when it comes to employment law. It is necessary for all employment relations practices to be firmly embedded in the legally enacted rules and regulations.

The history of the fair employment law has been discussed by Engstrom (2011). The 1964 Civil Rights Act can be traced as the origin of equitable employment law in the United States. Before the close of the 1960s, employment laws had already been enforced in over 20 states. Although the initial state-level schemes to enact and enforce employment laws were considered to be fairly effective, it is vital to mention that the federal courts were later given the mandate to oversee the implementation of employment laws. During the 1940s, it can be recalled that the civil rights groups played a major role in championing the rights of workers who were being discriminated at various workplaces.

The main issue of concern during this time was racial discrimination in employment. The administrative approach used by the civil rights groups was found to be relatively effective in agitating for the demands of workers. Although civil rights groups are still active in the current decade, court and litigation measures are largely used to address the breach of employment laws at the local, state and federal levels. Pressure groups are no longer viable platforms for seeking redress on job discrimination even though their functions are still recognized by governments across the globe.

References

Curran, D., & Quinn, M. (2012). Attitudes to employment law and the consequent impact of legislation on employment relations practice. Employee Relations, 34(5), 464- 480.

Engstrom, D. F. (2011). The Lost Origins of American Fair Employment Law: Regulatory Choice and the Making of Modern Civil Rights, 1943-1972. Stanford Law Review, 63(5), 1071-1143.

Schwartz, J. C., & Lucas, A. R. (2012). The mobile executive: US employment law. Business Law International, 13(3), 263-277,241.

Introduction

The cases of Laurence, Dottie, and Edgar involve both individual and collective matters. For Laurence, his cases are two – deduction of a two days pay as a result of participation in industrial action and recovery of an overpayment of expenses due to his error when completing an expenses form.

The first case which borders on industrial strikes calls for attention in line with the provisions as set out in the procedures governing official and unofficial strikes.

Official strikes

An official strike is supposed to have the backing of the appropriate trade union to which an employee belongs. In the case involving Laurence, it has to be established whether it was an official strike or not.

Unofficial strikes

An unofficial strike occurs without the trade union’s support because they are against agreed procedures and union rules. If Laurence had participated in an unofficial strike, could the employer have been right to deduct two days’ pay from his salary?

There is no evidence to show that strikes are unjustified simply because they are unofficial. Rather, any group of employees has the right to strike in furtherance of a trade dispute, whether members of such a group are organized within a trade union or not. If a legal penalty for unofficial strikes were to be introduced, such people would have no ultimate sanction in a situation where they feel that they are aggrieved.

From research, it has been established that most strikes; official and unofficial are caused by issues on disputes over wages, allowances, hours, trade union rules, discipline, working with non-unionists, and job demarcation. There are also strikes in sympathy with stoppages of other workers elsewhere and for the reinstatement of discharged and suspended workers.

The case of Laurence

To ascertain whether his employer was right in deducting two days pay from his salary, Laurence should be able to answer the following questions; which are in line with Trade Union and Labour Relations [Conciliation] Act 1992:

• Was there sufficient notice to the employer by the union to which Laurence belongs, of their intention to embark on industrial action?
• If so, was the notice received and acknowledged by his employer?
• Before the industrial action, were the various conciliatory procedures followed in seeking other options to resolve the dispute to avoid the strike followed, including seeking the help of Advisory, Conciliation, and Arbitration Services [ACAS]?
• Is Laurence a member of the trade union that organized the strike?
• How was the strike – a “wildcat strike”? In other words, was it unofficial where were hostile, intimidating, without justification, and without notice?
• Where the majority of the union members in favor of the industrial action before it was embarked upon?

The employer

On the part of the employer, the following questions should be addressed, bearing in mind the rules and regulations as contained in the Employment Act of 2002 and sections 1, 2, and 3 of “Discipline and Grievance at Work” ACAS Handbook:

• Were the cases of the employees properly investigated by management as soon as they were discovered?
• Were the employees involved informed in writing about what they were alleged to have done wrong?
• If the item above was followed, how clear was the written information or notice, assuming the employees were not able to read and understand the language [English] in which the information was written, or still, where English happened to be a second language to them?
• If item [3] above was so, did the employer try to explain the content of what they put in writing to the employees who did not understand the English language?
• Were the employees allowed to hear and to be heard on the information about their via an organized meeting with them, collectively or individually or through their union representative[s]?
• What were the specific amounts involved in each case and was it right to have had the whole amounts deducted once? Or should it have been better deducted instrumentally to avoid putting the employees under unnecessary financial stress?
• How reasonable did the employer consider the disciplinary actions taken against those employees under the circumstances?
• Were they first invited to a meeting where the offenses were discussed and the type of disciplinary action made known to them by the employer before the enforcement, as provided by section 3 of the “Discipline and Grievance at Work”?
• Were the employees given the necessary option to appeal against such a decision by the employer?
• As trade union members, did the employer invite a senior representative or a permanent official of their trade union to discuss the disciplinary action to be taken, to avoid a serious dispute if they consider it an attack on their union functions?

Advice to consider by all parties

Laurence: He should take the option of appealing the action of his employers in deducting a two days pay from his salary for his involvement in the industrial strike.

In doing that, he should get a senior manager who is not involved in the case to hear the appeal or another manager, if possible.

He should be aware that whoever should handle the hearing must be a trusted individual who would be impartial in handling it.

Laurence, Dotie, and Edgar: On the other cases involving penalties on errors and/or negligence by the trio, they can collectively appeal against the deductions. They should request for a meeting with the management to discuss their grievances, collectively and/or individually, and see how a favorable resolution can be achieved without resorting to reporting to the Employment Tribunal.

The reason is that, if they decide to go to the tribunal without trying out the above options, there is no certainty that the cases would eventually be decided in their favor.

However, if after trying these options and the management still fails to provide an acceptable ground for their actions, then their last resort should be to the Employment Tribunal.

The law stipulates that any employee who feels that he or she has suffered an unlawful deduction from wages or been required to make unlawful payments may seek redress by presenting a complaint to an Employment Tribunal.

Laurence, Dottie, and Edgar have the option of seeking redress from an Employment tribunal as they seem to have a good case to present. However, Laurence should be aware that the employer has the right to deduct from his wages for participating in an industrial action depending on the ground of the strike.

Laurence and his colleagues have within three months to make their complaints to the Employment Tribunal, effective from the date on which the payments were due to be paid. If that is not reasonable, the Tribunal will decide which date it considers reasonably practicable.

The employer. The employer should revisit the case by:

• Calling a meeting with the aggrieved employees immediately to look into their grievances individually and collectively. Seek each person’s opinion and take another look at the condition of employment and wages and salary.
• Look at the bulk deductions and consider installment deductions over some time mutually acceptable to all parties [if the deductions are found to be justifiable].
• Explain to them how the deductions came about [in the cases involving Dottie and Edgar]. For instance, why did management
• unilaterally stop paying Dottie’s extra allowance for weekend shifts and why did they reduce her rate pay by One pound per hour without notifying her beforehand?
• In the case of Edgar, management should explain in clear terms what they meant by “shortage of cash in the till” Was it for instance a case of:

The law states that the employer must before receiving any payment from the employee because of shortages or deficiencies.

Let the worker know in writing the full amount that he owes. The worker must not be required to pay more than 10 percent of the gross amount payable on the payday.

A demand for payment can be given or posted to the worker or left at his or her last known address on a payday. [This does not however apply to payments by workers who are receiving their final payment on being disengaged].

Based on this, it is unlawful for the employer here to deduct 15% from Edgar’s salary. The law stipulates that, if an employer goes to court to recover money from an employee because of shortages or deficiencies, the court must ensure that payments do not exceed installments of 10 percent of gross wages.

That period, management should give them support and guidance to attain an acceptable level of productivity or performance.

However, if they fail to meet the expectation of the employer after the stipulated period, then the new wage [in this case lower pay] can be applied, but not until then.

Furthermore, if the reduced wage and stopped shift allowance were a result of distress in the organization, two options can be considered, viz: agree with the worker and implement any change in that regard. Or downsize via redundancy and reduce the workers to a manageable size to keep the business going

Reference

ACAS Handbook [“Discipline and Grievance at Work”] UK Employment Act 2002.

Landau, Zeffert, Wear Solocitors. London [Articles].