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Unfair dismissal laws in capability and misconduct issues

Discuss about the Employment Law In Human Resources?

Paul was working as a sales assistant for 4 years in a department store based in central London.  He was dismissed from the job due to inappropriate behavior in the workplace.  He had appeared drunk in the workplace and shouted loudly at his work-colleague in the presence of many customers. When warned about his behavior, Paul was violent in his manner, and punched the floor manager on his jaw. Thus, due to such reasons disciplinary action was taken against him.

In the case of departmental stores in London, the below mentioned reasons, are the potential causes for employee dismissal

The employer can discontinue the employee contract with or without giving prior notice, as stated in the terms of contract (Dismissing staff - GOV.UK, 2016)

 b.The employee leaves the brand due to personal reasons by serving a notice period, if the contract states specifically mentions such stipulation. 

Procedure for a fair dismissal- The ACAS code of conduct determines necessary principles related to employee behavior in the workplace (Boxall 2013). However, it does not specifically mention about procedures related to dismissals on reasonable grounds. A fair procedure is mandatory to dismiss Paul on the grounds of unfair behavior at the work place. The procedures for dismissing an employee on fair grounds include the following.

Investigation-   Investigation should be made without unreasonable delay, to identify the necessary causes that can lead to employee dismissal. For this purpose, witnesses could be analyzed to get the correct perspective to the incident. A true and fair analysis can be made here

Communication to the employee- There should be proper channels of communication between the employer and the employee. Thus, this would assist the employer to clearly state against what parameters his performance would be judged. Jiang et al. (2012) mentioned that Effective communication can play a large extent in resolving issues amicably.   

Frequent meetings- Management can conduct frequent meeting to understand the issue from the perspective of the employees (Kehoe and Wright 2013.). In addition, reasonable time can be provided to the employee to establish their case. This would ensure that employee can provide valid arguments to support his cause. 

Determine appropriate action- After examining the situation, the brand needs to determine its response that would be appropriate in the situation. The departmental store must ensure that there are reasonable grounds to sack Paul. Any disciplinary action taken must conform to the regulation as mentioned in the employees’ contract (Naidu 2012).  

Procedure for a fair dismissal

Opportunity to appeal – If the employee believes that any disciplinary action taken cannot be justified, then that person has the right to lodge an appeal (Bratto and Gold, 2012). It is the duty of the concerned authority to appeal to review the appeal, and prepare a fair response. Employees have the right to be physically present at the appeal hearings, to support their arguments. When it becomes difficult to judge a situation, it becomes important to consult past records that refer to employee behavior in the previous organizations

Role of employee representative 

Assisting the management with providing valuable data relate to employee issues and daily business operations, remains the primary responsibility of a employee representative (Armstrong and Taylor 2014). In addition, employee representatives help the management in tackling daily business operational problems. Employee representatives usually operate in businesses, which do not possess a trade union that look into employee welfare matters (Armstrong and Taylor 2014). In the case of the departmental store based in London, the brand can utilize employee representatives to look after the daily problems that might arise in its operations. The general manager of the brand can implement strict disciplinary action against Paul, to prevent such incidents in happening in the future. .

According to Naidu (2012), the employee has the full capability and right to appeal against any disciplinary action taken against them. Provisions have to be made for ensuring a fair hearing for each employee appeal. Thus, an employee appeal has to be given considerable attention, so that there are no lapses or fatal errors on the part of the disciplinary authority.  There are several risks in contesting Paul’s claim for unfair dismissal claims. Firstly, it remains to be confirmed that whether Paul is eligible to claim unfair dismissal. Since, it engaging in violent behavior is a relevant ground for automatic dismissal. Additionally, Paul may have to additional compensation if he loses the case. A court case may lead to his professional record being shown in a negative manner to future employees in the workplace (Boxall 2013). As such, getting jobs in the future may be difficult for him. Getting an out of court settlement may not be appropriate for the departmental store. The store is already in a favorable position against Paul given his wrong behavior in the workplace. An out of court settlement would mean unnecessary expenses for the business. Also it would harm the brand image of the departmental store, if necessary actions cannot be taken against the employee (Ferner et al. 2012).Thus, the departmental store needs to conform employee polices and the job contract to take appropriate measures in such a situation. 

Right of employees to appeal against serious disciplinary issues

Polkey rules

Dipboye et al. (2013) mentioned that the Polkey rules are an important method to compensate an employee in the case of an unfair discharge from the service. It states that when compensation is paid in an unfair discharge form service case, it is generally classified into two segments- basic and compensatory awards. The basic award depends on the age and the years spent in the organization (Home | Acas, 2016).

However, these attributes depend on certain limits and subject to prospective tax deductions. Polkey procedure is the most common compensatory awards given to employees. Mello (2014) stated that it could be applied when an employee is wrongly dismissed due to unfair dismissal procedures adopted against him.

Sleep well holdings holds split shifts for workers (four in the morning and four in the evening), since they do not have to commute to work. As such, its staff has the below mentioned rights related to its working hours.

Workers are entitled not to work more than 48 hours a week (Jiang et al. 2012).This law is also known as working time directive and working time regulations.

There are exceptions to this rule, when the situation demands having a substantial number of staff throughout the day. Thus, staff shifts have to be rotated in an organized manner to ensure effective business operations. 

Sleepwell holdings can pay its workers in weekly basis or in monthly basis. However, it has to conform to the national minimum wage which states that the minimum pay per hour paid to all categories of workers (  Equal pay - advice and guidance | Acas, 2016). Here, employees have the right to compare their salary with the industry standards, and analyse if there is any differences. Additionally, employees are also entitled to know their structure of pay (Williams and Scott 2013).They should be aware of how their bonuses are made, so they can perform better at the workplace. However, employees have to keep their pay related data confidential, and avoid disclosing it to other people in the organization.

The following are leave characteristics which employees of Sleep well holdings have the right to avail.

Leave entitlement -All categories of workers have facility of 5.6 weeks paid holiday leaves in a year (Ferner et al. 2012).The employers can have bank holidays as a part of annual statutory leave.

Coming to work 5 days a week- Workers working for 5 days a week shall have 28 days annual leave per year. As such, this is measured by multiplying a week (consisting of 5 days)   by the annual leave entitlement of 5.6 weeks (Shafritz 2015). 

Polkey rules

Irregular working hour

People working in inconsistent shifts are entitlement to claim remuneration for extra working hours.

Statutory leave limits

As per the act, statutory holiday entitlement is restricted to 28 days a week. As such, staff working 6 days a week can avail 28 days, paid holiday and not 33.6 days a week ((Holiday entitlement - GOV.UK, 2016)

 The equal pay act law prohibits discrimination in remuneration on the basis of gender (Kehoe and Wright 2013). Here, remuneration consists of – salary, incentives and holiday payments. As per the equal pay act, both men and woman must be equally compensated when performing same or co-related work requiring the exact skill or aptitude, and decision making abilities (Stahl et al. 2012).

 Sleep well holdings is in the process of setting up its business operations in UK for the first time. As such they would require substantial human resources to run their operations smoothly. Gender pay gap is a major issue in the hospitality industry (Bonet et al. 2013). Thus, traditionally women staff are paid much less than the men for delivering equal volume of  work, The equal pay act addresses these issues and seeks equal remuneration for both men and  woman providing hospitality services to consumers (Riley 2014).

As per the case scenario given in this assignment, it has been observed that Sleepwell Holding is willing to take a chain of motel style operation at UK. That is the reason the company need to recruit more staffs for that particular matter. In the requirement criteria, the company would love to add that the candidates who will be flexible in time would be given special preference (Wedderburn 2009). Moreover, time flexibility is one of the major criteria for this particular job. Therefore, it is clear that in order to work for this particular company, the person should not have any restriction regarding time.

Several laws are there in order to defend such kind of rigorous and routine bound criteria thrown on behalf of the employers.  Women employees are possessed with the maternity rights since many years. From the year 2003, fathers also got facilitated with the paternity rights so that they can also receive paternity leave as well as adoption leave. Maternity and paternity right ensures that if one particular female employee or a male employee is going to become a mother or a father those persons have complete right to take a long leave. In addition, company can never force them to become flexible in time (Pouliakas 2010). This right is strictly applicable for the female employees specially. Therefore, the company has to become liberal in those cases if they want to avoid legal issues. These kinds of legislations are found to be consolidated with Employment Right Act in the year 1966, Employment Relation Act in the year 1999, the employment act in the year 2002 and finally Work and families act in the year 2006. With the help of these legislations, parents can receive enough opportunities from the employers of their com

Important statutory rights workers possess in the fields of pay, leave, and working time

Only leave for fifty-two weeks is not only the opportunity and facility that a father or a mother gets while giving the birth of their child. With the help of this particular legislation employees get 90% SMP leave. Permanent employees have every right to get a paternity leave when their child is born (Napier 2008). If any case the employees have been appointed for a contractual basis or for a short time basis, this person may not be allowed to go for a paternity leave. Therefore, in this particular case scenario, it has been observed that Sleepwell Holding has searched for those kinds of employees who are very much flexible in time. If any situation, the company tend to force any particular pregnant female employee for being flexible in time, she has hundred percent right to take an immediate step legally with the help of those legislations that are mentioned above.

In order to make any change inside the organization, the human resource management of a particular division has to be very much correct from the perspective of law so that the organization does not have to face any kind of legal issues complained by staffs or any other else. As per the case scenario given in this assignment, it has been observed that Airport cleansing has been planned to be contracted out of the private sector. For that reason, the new employers decided to cut down almost two hundred and fifty employees. Those employees had been attached with the organization for several years. In this situation, as responsible human resource manager, I have been told to convince those new employers so that the staffs do not have to suffer for any kind of reorganization in the business process. Different kinds of laws are available that would support the existing employees in order to remain on the early contract.

In this particular part, the importance of law on varying contracts has been discussed. Law on varying contracts implies that before implementing a contract, the consultation and the agreement should be executed from both parties (Bacon 2011).. The decision that would be taken before making the project would have to be collective. Employees have complete right to stick to their existing contract (Forray 2013). The way of agreement with the employees before launching the contract is s follows:

Making a negotiation with the employees

Clarifying in detail about the reason of changes

Providing priorities to the options given by the employees.

If the employers fail to convince the employees in order to agree in the new contract, the employers do not have any right to force any employees for being convinced in the new contract (Grundmann 2011). If the procedure of consultation fails, the employers should terminate the existing contract of employment. In this case, the employers have to follow several factors such as:

The reasons for the dismissal of the proposal should be highlighted in the letter

One copy should be provided to the employees

They have to be invited for attending in a meeting in order to discuss the matter in detail.

In this particular scenario, it has been mentioned that in the year 2008, airport rendered a new contract with the help of which the employees could be highly benefited. It has been observed that sixteen employees due to some personal reason refused that contract and they are still sticking as the serving staff on 2008 contracts (Grundmann and Ochmann 2009). Therefore, varying contract allows the employees to deny the new contracts that are about to launch.

Redundancy law implies that if the organization makes dismissal to the employees, a valid reason should be provided along with it. Moreover, the employees need to given redundancy pay as well (Hesselink 2015). The necessary requirements of redundancy law are as follows:

  • Employees have to give a valid reason for the redundancy. In addition, they have to pay alternative options of employment so that this particular employee has to struggle later on because of this dismissal.

  • After giving the notice of termination of employment, employers have to provide a sufficient time scale (Charles 2011). This particular time scale needs to be more than twenty hours to take the final decision.

  • Transferor needs to get the redundancy payment for the further progress. Redundancy payment signifies when a particular employee is being terminated, the company needs to compensate by proving the employee a certain amount of money. Redundancy pay is generally of two kinds (Lion 2010).

  • Statutory: Statutory redundancy pay has been set with the help of law. If any company ignores to provide any redundancy pay to these particular employees, this individual can take the help of redundancy law in order to get money that this particular individual actually deserves.

  • Contractual: This particular system implies that employees would get the redundancy pay only when the organization where this individual works has that facility of redundancy (Napier 2008). Otherwise, the company would not be responsible for any kind to compensation.

In case of business transfer, the employees have been fallen under the category of Transfer of undertaking (protection of employment) regulation that is popularly known as TUPE. The application of this particular regulation has been launched in UK.  TUPE ensures if a business organization intends to transfer their business in another country, the ownership ha s to be in the same country (Robertshaw 2012). For an example, if the organization of UK decides to change their ownership, the owner must have to be from UK so that the employees do not have to suffer for the reorganization of their business. The necessary requirements of TUPE are as follows:

When an organization tends to change their ownership, this particular company needs to make an effective consultation with the employees. The employees should be aware of the terms and conditions of the new owners because the change of ownership means the implementation of new regulations of the company (Sutherland 2010). That is the reason; the representatives of the new companies should make a clear discussion with the employees so that they do not have any kind of ambiguity regarding the job profile at their workplace.

Employees should have a clear knowledge whether this owner would be going to provide any redundant pay if they have been terminated under any circumstances.

Under the progress of TUPE, two types of business transfer include business transfer and service provision changes.

  • Business transfer:

Business transfer signifies that a particular business or a part of business has been transferred from one employer to the different employer.

  • Service provision changes:

Service provision change signifies that a particular service has been awarded to the contractor such as cleansing.

TUPE cannot protect every employee in all cases. Only those employees who are dedicated enough to provide effective service to the customers have been kept in the category of  transfer for undertaking.

References

Armstrong, M. and Taylor, S., 2014. Armstrong's handbook of human resource management practice. Kogan Page Publishers.  

Bacon, C. 2011. ‘Principles of European Insurance Contract Law’. European Review of Contract Law, 7(3).pp.113-120.

Bonet, R., Cappelli, P. and Hamori, M., 2013. Labor market intermediaries and the new paradigm for human resources. The Academy of Management Annals, 7(1), pp.341-392.

Boxall, P., 2013. Mutuality in the management of human resources: assessing the quality of alignment in employment relationships. Human Resource Management Journal, 23(1), pp.3-17.

Bratton, J. and Gold, J., 2012. Human resource management: theory and practice. Palgrave Macmillan.

Charles, M. 2011. ‘Contract Theory and EU Contract Law’. SSRN Electronic Journal, 9(10), pp.123-145.

Dipboye, R.L. and Colella, A. eds., 2013. Discrimination at work: The psychological and organizational bases. Psychology Press.      

Dismissing staff - GOV.UK. (2016). [online] Gov.uk. Available at: https://www.gov.uk/dismiss-staff [Accessed 6 Mar. 2016].

Equal pay - advice and guidance | Acas. (2016). [online] Acas.org.uk. Available at: https://www.acas.org.uk/index.aspx?articleid=1811 [Accessed 6 Mar. 2016].

Ferner, A., Edwards, T. and Tempel, A., 2012. Power, institutions and the cross-national transfer of employment practices in multinationals. Human Relations, 65(2), pp.163-187.

Forray, V. 2013. ‘Property Structures Underlying Contract’. European Review of Contract Law, 9(4), pp.34-50.

Grundmann, S. 2011. ‘The Future of Contract Law’. European Review of Contract Law, 7(4), pp.90-100.

Grundmann, S. and Ochmann, F. 2009. ‘German Contract Law Five Years After the Fundamental Contract Law Reform in the Schuldrechtsmodernisierung’. European Review of Contract Law, 3(4), pp.765-3567.

Hesselink, M. 2015. ‘Democratic contract law’. European Review of Contract Law, 11(2), pp.654-1000.

Holiday entitlement - GOV.UK. (2016). [online] Gov.uk. Available at: https://www.gov.uk/holiday-entitlement-rights/entitlement [Accessed 6 Mar. 2016].

Home | Acas. (2016). [online] Acas.org.uk. Available at: https://www.acas.org.uk [Accessed 6 Mar. 2016].

Jiang, K., Lepak, D.P., Han, K., Hong, Y., Kim, A. and Winkler, A.L., 2012. Clarifying the construct of human resource systems: Relating human resource management to employee performance. Human Resource Management Review, 22(2), pp.73-85.

Kehoe, R.R. and Wright, P.M., 2013. The impact of high-performance human resource practices on employees’ attitudes and behaviors. Journal of Management, 39(2), pp.366-391.          

Lion., M. 2010. ‘Corporations: Transfer of Entire Business: Stockholder's Consent’. California Law Review, 2(1), p.61-90.

Mello, J., 2014. Strategic human resource management. Nelson Education.

Naidu, S., 2012. The Nexus between human resource management practices and employment law in the Fiji Islands: a study of the employment relations promulgation. International Journal of Entrepreneurship and Small Business,16(2), pp.164-175.

Napier, B. 2008. ‘Redundancy Payments and Promissory Estoppel’. Cam. Law. J., 35(01), p.38-90.

Riley, M., 2014. Human resource management in the hospitality and tourism industry. Routledge.

Robertshaw, P. 2012. ‘Redundancy consulation: Exemption from Consultation Requirement’. Industrial Law Journal, 7(1), pp.45-50.

Shafritz, J., Ott, J. and Jang, Y., 2015. Classics of organization theory. Cengage Learning.

Stahl, G.K., Bj, I. and Morris, S. eds., 2012. Handbook of research in international human resource management. Edward Elgar Publishing.

Williams, S. and Scott, P., 2013. The UK’s Employment Law Review: the dynamics of policy-making under coalition government. UK Coalition Government and Employment Relations.

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