a)Critically examine the legal risks that ABC Ltd face in taking the course of action outlined in this case?
b)Critically discuss the defences available for ABC Ltd to deploy should an aggrieved employee or would-be employee decide to bring a tribunal case? How strong a case could be mounted?
c)Evaluate the employment relations issues that could result within the organisation if the senior management team were to proceed with the course of action as described in the case study?
Dealing of ABC Ltd with constitutional issues
The Parliament has enacted employment legislations such that the relationship between the employers and the employee is proper and has good reliance on it. In the United Kingdom, the aim of the employment law is to maintain a balanced relationship between the employees and the organizational interests. It is a known fact, that the bargaining power of a company is much more with respect to employment as compared to employees (Larson 2015). Thus, a balance has to be maintained due to which the parliament has discoursed the following legislations, which apply to the law of employment both in the general sense as well as in the specific sense.
- The Equality Act 1990: It protects the employees from discrimination by the employers and simultaneously endorses equal opportunity.
- The Human Rights Act 1988: It safeguards the rights of the employees within the management.
- TheWorking Time Regulations 1998 : It safeguards the employees from the pressure of excessive working hours.
- The Employment Rights Act 1996: It lays down distinct rights to the employees within the management.
- The Health and Safety at Work etc Act 1974: It lays down safety and health rights to the workers.
The first risk, which any company may be subjected to, is the risk of discrimination. The Equality Act lays down nine safeguarded features due to which any discrimination act is disallowed. These nine features take into account race, sex, age, gender reassignment, pregnancy, marital status, religion, sexual orientation, disability. The United Kingdom has witnessed a number of cases originating from employment law issues (Walsh 2015). Majority of these issues are in alliance with employee rights, partiality and bigoted expulsion (Craven 2015).
Gender prejudice: ABC Ltd is encountering an intrinsic choice program for the designation of sales executive. As it deals in tough competitions with other organizations and leans for survival on a viable customer base, the foremost legal hazard originates from Joan Keenan, as her application was disapproved owing to her gender. The Equality Act 2010 through Section 13 (direct discrimination), 14 (Indirect Discrimination) and 19 (Combined discrimination) disallows an employer to do partiality with the employees based on the safeguarded characteristics. Employment discrimination can constitute various forms of which earnings; hiring and promotion are few examples. Discrimination of any kind against females is abjured as listed in the case of R (Equal Opportunities Commission) v Birmingham City Council  AC 1155. The school had allotted fewer seats for girls in comparison to boys; the court stipulated in this matter that the school reckoned to gender discrimination. Thus abstaining Joan from joining the job despite her educational standard owing to the reason that she would fail to deal with the customers of the company in accordance with entertainment is gender discrimination (Meyer 2014).
Race Discrimination: The institution has also harboured the exposure of partiality of language and race with the sequel of action adopted by them. The application made by Aldo Viscida has been disallowed owing to his place Milan and his obvious inefficiency in English. His work as a sales employee is admirable and he has been the best performer in his company’s sales chart. Thus, a person’s race is not the only responsible factor for racial discrimination. His or her ethnicity and nation also contribute towards it. A person, if he fulfils the requisite criterion for the job and language is only a barrier which is inessential for the job, cannot be victimized on the basis of hiring and selection (Harel, Procaccia and Ritov 2015). Any judgement regarding language is violating as given in the case of Kelly v Covance Laboratories Ltd (Race Discrimination: Direct)  UKEAT.
Age prejudice: A further risk, which the organization may be subjected to, is the hazard of age injustice. Age prejudice is when a person is denied equal opportunity solely because of his or her age despite having the requisite qualification. The Equality Act 2010 lists down that age are one of the safeguarded features (Romero and O'shea 2013). In the Frost v David Harber Ltd(2010) ET 2703446/09 case, the court had decided that rejection of an employee for a specific job in spite of the employee having the requisite qualification for the job and no one else matching the requirement in a better way, would straightaway mean age prejudice in accordance with the act (Craven 2015). Hence, in this matter, Mr. Constant is accomplished and equipped according to the designation of new sales executive. Despite this, his application has been disapproved due to his being 61. Thus, the company falls under the case of violating age prejudice.
Employment contract: Changes in the structure of the salary or reduction of salary often leads to breach of the terms of employment. The terms of the contract of employment should not be changed without prior consent of the employees (Sappideen, O'Grady and Riley 2016).
Dieting and no smoking policy: The Human Rights Act 1998 and the Health and safety at work Act 1974 endorse human rights and health rights of workers within a company respectively. The action plan, which the chosen sales executive is supposed to implement, hinders the right of choice and freedom of privacy of the workers. A worker is under no compulsion to attend dieting programs and no smoking classes unless if it is rigidly needed for their designation in the company. The employees may perhaps be subjected to health problems owing to the variation in the salary structure since they had to deal with increased working hours. This causes disruptions between the personal and professional life (Sprague 2016).
Dismissal policy: According to the Employees Right Act 1996, an employee can be laid off only if there is an honest and valid excuse provided by the employer. In case of exertion of the proposed plan and expulsion of the employees every year by judging their work in accordance with other people, the organization would have to face legal payback with charges of biased dismissal (Weil 2014).
The Parliament of United Kingdom has enacted certain rules for protection of employees against unfair behaviour of the employers towards their employees, in the same way, the Parliament has also enacted legal defences so that employers are not harassed by their employees without any reason. For the smooth functioning of the business, it is important that employees maintain and abide by the rules of employer harassment (Barnard 2014). There are certain defences available to the employers, which they may be used at the time, when they feel that they are being discriminated by the employees. The employer may justify their course of action for recruitment and selection of employees.
As per the Equality Act, 2010, an employer can discriminate against the employee depending on the requirement of protected characteristics if the discrimination is based on occupational requirement. This means that the employer can discriminate against the employee if the requirement of the occupation is based on his characteristics or features. For example, if the requirement of a movie is that a male or a fair looking actor is needed, then rejecting a female or a darker looking person would not result to discrimination (Taylor and Emir 2015).
Additionally, the employers also have the right to discriminate if the aim of their work or occupation is for a legitimate cause or reason. In such cases, the employee cannot declare the actions of the employer as discriminatory.
One more defence, which the employers can use against their employees, is the test of comparison. This can be enumerated with the help of case law of Shamoon v. Chief Constable Of the Royal Ulster Constabulary 2003. In this case, the woman claimed that she was wrongfully rejected for promotion based on her sex and a male candidate was preferred over her (Thompson et al. 2016). However, the defendant successfully proved that there were differences in their performance because of which the male applicant was chosen over the female applicant. This means that the police officials for promotion did no discrimination. The Court rightfully declared no discrimination on the part of the defendant.
The situation mentioned above often give rise to sex discrimination and Joan can make this claim against the company. The application for promotion was rejected only because the company though that she would not be able to handle the customer base during nighttime as many female employees have not felt comfortable with shift timings at night. Thus, they chose a male applicant over female applicant. The claim could have been made even stronger if a male having similar qualification as hers would have been selected instead of the female candidate. However, in the given case, the qualification possessed by the male candidate was better than the female candidate. Thus, the company can defend itself on the ground that they did not discriminate on the basis of sex but on the basis of performance which was the need of the given vacancy.
Likewise, in the case of Wolf v Stadt Frankfurt am Main 2010, the Court held that age can be considered as a ground for organisations to select people at the time of recruitment (Cahill, Giandrea and Quinn 2013). In this case, Mr David can make a claim of age discrimination against the company, stating that his application for job was rejected as he was 61 years of age. However, the company can successfully defend itself on the ground that they were in need of an applicant for running business operations of the company and for doing so they needed a person who would stay in their company for a long term period. This was however not possible in the case of claimant.
Concerning racial discrimination, which was brought by Mr. Viscida against a company, the company can use the defence of good communication skills in English Language. The company as one of the major grounds for employment can consider good communication skills. In this case, the claimant was weak in English and this became a problem for the company to employee Mr. Viscida. There was no racial discrimination in the provided case. In the case of Manda v. Lee, it was held that company can use the defence of not belonging to a particular racial group (Becker 2016).
The plan of action that was proposed by the sales executive team also included extra list of risks such as unfair dismissal, right to privacy and health risk. Employees cannot be laid off in an unfair manner because they are not performing as good as other employees. This is a non-justified ground of discrimination. However, a company can dismiss an employee stating that he not performing well as per the standards of the company. If employees fail to meet this given criteria, then they may be dismissed from the company. However, in the given case, the company may claim that the employees are yet to be dismissed and that they have not been dismissed yet. They cannot make a claim against potential dismissal. Moreover, concerning health and safety claim that is brought by the employees against ABC, the company may state that they have not forced the employees to work for extra hours and that the employees have worked on their own discretion.
Employee relation can be defined as an emotional or contractual relationship between two employees. This means when two employees interact with each other while working together in an organisation they enter into a relationship that is coined as employee relation. A good and healthy relationship between employees helps in the motivation of employees in a good manner. However, tension and unhealthy relationship between employee’s yields negative results in an organisation affecting the productivity of the workplace. It is the responsibility of the management to create a positive bond with the working employees in the organisation and in case there exist any differences between the employees, the management should aim to address the issue immediately. A good employee relationship helps in the promotion of a healthy work environment in which employees are able to concentrate in an effective manner. The lesser are the conflicts between employees the healthier are the relationship between them. The best way to secure talent in an organisation is by maintaining good employee relationship.
From the given case study, the following are the issues that may be arise from the given case study:
- If the employees become aware of the fact that the employers are behaving in a discriminatory manner against them, they may feel demotivated and would show less interest towards their work. This in turn would affect the productivity of the organisation. For example, in the given case study, Joan may feel demotivated on the ground that there is no scope of promotion for her. This impacts behaviour of the employee and her relationship and trust with the organisation would subsequently degrade. The organisation should therefore provide proper reasons for not accepting the promotion application.
- Secondly, employees face a major challenge in maintaining a healthy balance between personal and work life. Achieving a balance between personal and professional life is major challenge for employees. Changing the salary structure of the employees would make them feel less motivated as it keeps adding to the burden of work. Such actions of organisations would make the employees feel demotivated and discouraged thus leading to rise to disputes. The companies should therefore make sure that they provide extra benefits to the employees without impacting their health.
- Thirdly, the dismissal of employees relating to work performance would affect their relation with other employees as well as with the organisation. Dismissing employees on the grounds of performance would spoil the company’s reputation in the eyes of the existing employees. The employer can infringe the privacy of the employees by imposing restrictions on smoking and maintaining a healthy diet.
Therefore, the company must make sure that they follow good practice of employees as far as recruitment and selection is concerned. Employers should only focus on skills of the employees. They should not be concerned with protected characteristics such as age, gender, sex, caste and creed of the potential employees.
Conclusively, it may be held that the employment sector is very complicated in nature. However, an organisation can prevent itself from being subjected to such issues by simply abiding by the general ethical guidelines. The main motive of an organisation should be to focus on only the skills possessed by them. Organisations should keep this mind at the time of selecting a new candidate for a given position or promoting an existing employee to an elevated position. As per the duties of a director, they are not supposed to place their personal interests over the interest of the company. For a human resource department of a given company, it is very important that they streamline the process of selection and recruitment. They should only choose people who have the capability to contribute to the success of the organisation because of their performance and skills. Thus, legal and ethical compliance at the time of recruiting and selecting should be of utmost importance to the company.
The following are the recommendations that the company should implement in the future:
- The company should prioritize the rights of their employees. People work to have a good and respectable employment life. Organizations should focus on the development of people at work rather than focusing on only promoting the professional life of selected individuals. Thus, organizations should create policies that are anti discriminatory in nature.
- Organizations should make sure that their process relating to recruitment and selection of new employees should be in compliance with the ethical norms. Organizations should focus on formation of good and healthy working environment.
- Organizations should focus on boosting the sales and productivity of the company by boosting the company’s learning capabilities. The development programs should be launched by the company and it has often been seen that such developmental plans have been very helpful for the employees. The action plan that was proposed by the sales team would help in the promotion of unity amongst employees and this would probably help in the overall increase in the productivity of the company.
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