Employment Law Advice And HR Support: Essay - Case Study

Protected Characteristics under Equality Act 2010

You work for a freelance human resource (HR) support organisation. You provide day to day employment law advice and HR support to a variety of clients. Some clients have been in touch with different issues as outlined below.

You are required to give both practical and legal advice and to support your advice with reference to relevant legal authority wherever possible e.g. legislation, case law and codes of practice.

You have been contacted by Kwik Fix Limited (“Kwik Fix”) which requires advice on several issues.

Kwik Fix is looking to promote staff to Store Managers. It requires candidates to have five years’ experience working in the retail business.

Daniel is aged 22 and has worked for Kwik Fix since he was 14. He started off as an hourly paid worker but he has worked full time for them since he was 17. Daniel is not considered for promotion as he is deemed to be too young to be a Store Manager and will have problems managing the older staff.

Grace is not shortlisted for the job as Store Manager because Kwik Fix is concerned that she may have to take time off work to care for her father who is seriously ill.

Haroon has only worked for Kwik Fix for four years so his application for the position of Store Manager is rejected.  

Ivan has worked for Kwik Fix for six years. Jane, his line manager, keeps making jokes about gays and homosexuals which upsets Ivan although Ivan is married and heterosexual. It also upsets Kapil who is a homosexual although he has not disclosed his sexuality to his colleagues at Kwik Fix. Ivan makes a complaint to Kwik Fix’s Human Resources Department about Jane which results in his application to become a Store Manager being rejected.

Advise Kwik Fix on whether the action they have taken complies with good employment practice and equality law in relation to Daniel, Grace, Haroon, Kapil, Ivan and Jane.

You are contacted by Mrs Mills, the Managing Director of Northern Baking Limited (“Northern Baking”). She informs you that Ahmed, an assistant baker in the baking section of Northern Baking recently ruined two batches of cakes due to his incompetence. In the first incident, a batch of cakes was burned due to Ahmed turning up the ovens too high. He then mistakenly added salt instead of sugar to a mixture that was used in muffins.

Bob works for Northern Baking in the accounts department.  One month ago, there was a break-in at Northern Baking’s premises and money was stolen from the company safe. The police suspect that it was an ‘inside job’. There were three employees who knew the combination for the safe, Bob, Cameron and Dave. Mrs Mills knows that Bob has been having some financial problems. Mrs Mills thinks that Bob must have been involved in the theft of money from the safe.

a) Advise Northern Baking on the steps it should follow before arriving at any decision to dismiss Ahmed and Bob.

Mrs Mills follows your advice and Northern Baking dismiss Ahmed and Bob. Mrs Mills has since become aware of the fact that Bob has been passing financial information to a rival baker.

b) Advise Northern Baking on whether Ahmed and Bob can bring a claim for unfair dismissal against Northern Baking and any relevant time limits. Explain the various stages of the claim and consider the legal arguments that could be raised by both Northern Baking and the employees. In particular, you need to advise Northern Baking on how an employment tribunal will decide whether a dismissal is fair or unfair.

Note: In this part of your answer, you need to focus on discussion of the relevant law and not procedure except if it relates to the question of the fairness of the dismissal.

Northern Baking has recently been notified that a contract with a major supermarket chain is to be terminated. The supermarket has given Northern Baking two months’ notice of their intention to switch supplier. As a result, Northern Baking has decided to close one of its factory lines for the next six months. Mrs Mills has decided that she will have to dismiss 25 of the 40 employees who work on the factory line to be closed. She has written to these 25 employees and informed them that their employment contracts will terminate in two months’ time.

Advise Northern Baking on the procedures they should follow prior to making the 25 employees redundant including advising on possible claims for unfair dismissal and other claims that the 25 employees could make if these procedures are not followed. Your advice should also consider whether these employees will be entitled to receive a redundancy payment.

According to the fact of the case, if any actions can be taken complies with good employment practice and equality law in relation to Daniel, Grace, Haroon, Kapil, Ivan and Jane or not?

The Equality Act 2010 has described the culmination of years of debate about the process for improvement of British equality law. It offers help for the individual for stronger protection against discrimination. It keeps employers and businesses with greater clarity about their responsibilities in the workplace. It is a new expectation that public services must treat every employee-employer with dignity and respect. Human Rights Commission has prepared and set the equality act for the elimination of unlawful discrimination and promote equality and human rights. It helps the employees for good practice of the employment under this act, which protects them from discrimination and serves with equal rights. The Equality Act 2010 has stated about the protected characteristics, which includes age, disability, gender resentment, marriage, civil partnership, pregnancy, Maternity, race, religious beliefs, sex and sexual orientation in section 2.2 (Legislation.gov.uk, 2018).

In chapter 3 of EA Act, the direct discrimination has stated in section 3.2. It has been stated about the direct discrimination, which occurred when a person treats another person less favorably due to the protected characteristics, which is unlawful (Schömann 2014). The primary equality act helps the people from discrimination and helps in the educations, public services, private goods and services or premises, which are included in the employment (Marsden 2017). Under the Equity Act 2010, there are other acts are included:  

• Equal Pay Act 1970
• the Sex Discrimination Act 1975
• the Race Relations Act 1976
• the Disability Discrimination Act 1995
• the Employment Equality (Religion or Belief) Regulations 2003
• the Employment Equality (Sexual Orientation) Regulations 2003
• the Employment Equality (Age) Regulations 2006
• the Equality Act 2006, Part 2
• the Equality Act (Sexual Orientation) Regulations 2007

According to the part 5, the work describes the relationship between the employees with the employer and other people in the workplace (Schömann 2014). As per the terms of the equality, it defines the sex equality, which describes the relevant types of work and equal work opportunities. The law protects discrimination at work, which includes various kinds. Those are dismissal, training, pay and benefits, employment terms and conditions, promotion and transfer opportunities, recruitment and redundancy (Legislation.gov.uk, 2018).

According to the fact of the case, Kwik Fixis has made the terms for recruiting Store manager who have 5 years of working experience in the retail business. Therefore, according to the fact of the case, it can be stated that Daniel is working with the store when he was 14 years old but worked in the store for the full time from last 5 years and he is completely eligible for the post. Hence, the company was discriminated him for the prohibited characteristics, which is his age. It is a direct discrimination. Kwik Fixis was not shortlisted Grace as she may have to take time off work to care for her father who is seriously ill but here it can be stated that according to the age and illness, she is required to take care of her father (Marsden 2017). Haroon is not applicable to the post of store manager because he has only four years of work experience. Ivan is also eligible for such post. He was discriminated by his co-worker Jane regarding sex orientation prohibited character which is one of the important parts in indirect discrimination (Schömann 2014). However, the complaint against Jane resulted in the rejection from the application of the store manager. However, as per the terms of the Equality Act 2010, Kwik Fix does the act of discrimination towards the employees who are victimised same by their co-worker (Legislation.gov.uk, 2018).

Direct Discrimination and Equality Act 2010

According to the fact of the case, Daniel and Ivan both are eligible for the post of the Store manager in Kwik Fix as they have five years of experiment in the retail business.

According to the fact of the case, the equality act 2010 has stated about the fixed term of employee’s rights, which defines in the employment contract. It established a contractual relationship between the employees and the employers. It includes in the employment contract that refers the organization, specific jobs or tasks which must be acted by them. Therefore, the employers are entitled to the fixed terms and they are bound to follow such terms. Therefore, Northern Bakingon can warn Ahmed about his incompetency towards the work. Due to such disabilities, the organization has faced loss, which is against of the nature of the employment. Fixed term employment entitlements and employee's regulations are treated no less favorably unless they are objectively justified. However, due to the disability of an employee, the company never takes any legal actions until and unless it affects on the works. The Disability Discrimination Act 1995 has stated under the Equality Act 2010 that a person must not discriminate for his or her disability in the workplace. The Human Rights Commission has combated such discriminations, which is illegal in the workplace (Legislation.gov.uk, 2018).

Here the company can investigate with the proper authorities about the person who did such illegal activities. Here, the company can invest through ACAS. However, if any disputes found like theft or related illegal activities by the employees in the workplace, then legal actions can be taken for such disputes. Northern Bakingon can warn the employee, take legal actions, or terminate the person for such illegal activities in the workplace premises. It is applicable only if the employer has found that misconduct has occurred. One particular reasonable ground must be found for such beliefs and allegations of theft. The actual reason or ground is approved after only the proper investigation regarding such misconducts or disputes (Marsden 2017).

The Unfair dismissal has defined an act of employment termination, which occurred for unfair or inadmissible reasons. It may include several reasons, which can be related with the various forms of financial problems, family problems like different kinds of leaves like parental leave, paternity leave for birth or adoption purposes, adoptions leave or time off for dependants. It is applicable for the part-time and fixed-term employees (Legislation.gov.uk, 2018). The dismissal is only fair if any the employees are found with the activities like:

• The reasons which are related to the conduct of the employee
• The statutory duty or restriction which is prohibited from the employment
• The reasons which may raise the issues of the qualifications for the job or an employee's capability
• There are some other reasons which may be caused by the justification of the dismissal
• The dismissal may cause due to the unnecessary redundancy

Relationship between employees and employers under Equality Act 2010

The fair reasons for dismissals can occur for different reasons, which may include:

• Misconduct

The misconduct is defined as wrongful, improper, or unlawful conduct, which is conducted for intentional purposes or considered for improper behavior. When such issues like misconducts or behaviors escalated or rejected for several disciplinary warnings then it will be taken as discipline warning. There is no such requirements are available which may warn such circumstances. The misconducts sometimes may become a dismissal on ‘grounds of misconduct’ (Schömann 2014). The important and serious conducting issues may cause like misbehavior or discriminatory behaviors, which is recognized as gross misconduct. A gross misconduct always proceeds for the result of the dismissal of the employees (Marsden 2017).

• Capability

The term Capability defines ill health or long-term illness, for example, if an employee has a long-term illness or physical illness like cancer, then it will create difficulties in his job. Before the procedure on the dismissal, the employer must discuss on such matters and allowed time for the employee. It will help them to recover, monitor and control all the situations. Therefore, it is necessary to have knowledge about the condition of the employee who is under a health treatment. The Occupational Health professional or Medical practitioner or doctor will provide the report regarding such medical illness of that employee. In the part-time or flexible working time, it is necessary of the capability of such works (Legislation.gov.uk, 2018).

• Redundancy

 Redundancy is one of the important terms in the employment, which caused when an employer either does not need an employee's job to be done by anyone or becomes insolvent or bankrupt. It occurs in the business when it introduces new technology (eg. the job can be done by a machine) or slows down due to lower sales or production or closes down. For the changes in the location, it is completely unfair for the redundancy. When the organization has found that, there is no need for such position or function by the employees in the employment then redundancy can apply on such circumstances (Schömann 2014). The redundancy is applicable when the reorganization of the work is better than the previous employment. Without appropriate consultation, the redundancy never proceeds to any employee. The redundancy process takes a minimum of 2 weeks and sometimes it may extend for 4-6 weeks. According to such process, the organization may proceed with an appropriate procedure (Marsden 2017).

• Breach of statutory restriction or Statutory illegality

It is applicable when the employee breaks the rules or laws of the employment. The statutory illegality is not provided any rights for the application of any dismissal procedure.

• Some other substantial reason

Advice to Kwik Fix Limited on Store Manager Recruitment

It is only applicable in the dismissal terms, which are mentioned above. It is a proceeding, which is applicable to the fixed term contract or for the temporary employees who may dismiss for allowing the original employee to return (Schömann 2014). It is also applicable when the client rejects or refuses to work with a particular employee and no other employees are available to work in such position. The substantial reasons are applicable when the employee does not agree with the terms of the organizations or disagree to change such conditions. In such issues, the organization has rights to dismiss that employee and rearrange for the new terms and conditions (Legislation.gov.uk, 2018). When any personal clash is raised between the organization and the employee and if it caused such substantial issues to the business, then the organization can dismiss that employee.  

Therefore, according to the fact of the case, Northern Baking already dismissed Ahmed and Bob, which is illegal according to the terms of the employment law. The Dismissal of Ahmed is fair as he was supposed to work properly in the organization. Due to the incompetency, he was dismissed which is correct according to the terms of the employment contract. According to the dismissal of Bob, it is unfair for him as he was suspected of the theft as he was facing financial crisis. It does not make any compatible reasons for the theft by him, which is unfair dismissal (Schömann 2014). 

The issue, in this case, is to determine whether the 25 employees of Northern Banking will be entitled to receive a redundancy payment. Another issue that is stated in this case is regarding the dismissal of employees because one of the factories was shutting down all of a sudden.

The Employment (Termination and Redundancy Payments) Act 1964 has legislated the term redundancy, which describes that, an employee who has been employed for the period of one and four weeks and works for the organization. While working under the organization before the period is over, if the employer dismisses the employee then the ownership of the business will be transferred. In this matter, the employee will be liable to pay to the employee the amount he deserves (Schömann 2014).  According to section 6 of the Employment Termination and Redundancy Payments Act, 1967, the employer shall not dismiss an employee if the contract of employment is become re-employed or renewed by the same employer with new term and condition in a new employment contract.

Advice to Kwik Fix Limited on Discrimination

An employer must clear the redundancy payment to the employees through a written statement by stating about the amount of payment, which will be calculated. An employer if fails to make the payment will be guilty of an offense and shall be convicted before a Resident Magistrate where the fine must not exceed two hundred and fifty thousand dollars. In default of payment to imprisonment for a term, not exceeding three months will make the employer liable (Kanbur and Ronconi 2016). In a contract of employment, an employee must mention about a period commencing on the date of commencement of the employment as a probationary period. The probation period is more than ninety days thereof. Similarly, the employer should also give notice to his employees before terminating them all of a sudden. If an employer does not terminate a contract of employment without notice during the first four weeks after he becomes aware of the conduct by the employee due to a reason. Based on this reason, the employer has the right to terminate the contract without notice. He can terminate the contract without notice because of the conduct (Freedland et al. 2016).  The employees will be getting the amount that they are entitled to receive from their employer if he suddenly terminates the contract of employment. The situation might arise out of emergency but the employer has to clear out the payment to his employees as per the contract they had entered into in the beginning.

In this case study of Northern Banking, a major supermarket chain was asked to be terminated by one of the suppliers. It had to switch the supplier. Therefore, Northern Banking decided to close of its factory lines for the next six months. This resulted in dismissing and terminating 25 of the 40 employees, who work in that factory line. Hence, those 25 employees were informed that their employment contracts would be terminated in two months. The matter that is majorly observed here is that whether these employees will be entitled to receive a payment of redundancy. As per the relevancy of the law, it can be observed that the employer is liable to make redundancy payments to these 25 employees. It is stated in the Employment (Termination and Redundancy Act), 1967 that the employer must give reasonable grounds to the employees for their termination (Painter and Holmes 2015).

It is mentioned in the act that either the employee or the employer of a company must inform either of the party about the termination before a period of ninety days. The employer will be liable to recover damages or pay to the employees for the breach of contract (O'Leary 2017). The employees were not at fault as seen in the case study. This scenario occurred due to the supplier. Northern Banking should have thought of other options instead of terminating 25 employees who were a part of the employment contract. Reasons for redundancy must be provided and proved by the employer while terminating the employees. A fixed term of employment is generally mentioned in an employment contract. Therefore, according to the Employment (Termination and Redundancy Payment) Act, 1967, the employer cannot terminate the contract with a notice of shirt period (Harbord and Hoernig 2015). Hence, those 25 employees who were working for the Northern Banking will be entitled to receive their payment of redundancy. The employer is liable to pay the employees since he cannot terminate the contract of employment.

Conclusion

According to the Employment (Termination and Redundancy Payment) Act, it can be concluded that Mrs. Mills of Northern Banking has to pay the redundancy payment to the 25 employees to whom she had served the notice of termination.

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