Adam owns a small cafeteria in central London and he employs a number of part-time staff who wait on tables and work behind the counter. In the last two months, he realised that the takings each day do not match with the receipts and he is short by a few hundred pounds. All the staff members have access to the till and work behind the counter on a rotation basis.
During a general meeting, Adam mentioned to all his staff that some money is missing. After the meeting, Adam started to suspect Jane who appeared quite agitated when he explained the situation. Furthermore, another member of staff, Hillary, told Adam that she saw Jane acting suspiciously recently when she was ringing an order into the till, but she did not provide further details.
Adam asked Jane to meet him in his office the following day and told her that he wanted to talk to her about the missing money. Jane had become very agitated when Adam said this. She has now come back to Adam and told him that she is pregnant and she will need to take maternity leave in a few months.
Adam does not know what to do. On the one side, he would like to deal with the issue of the missing money and, if Jane has been stealing it, dismiss her. On the other side, he has heard so many stories about pregnant employees suing their employers when they have been dismissed and he is concerned that he has no actual proof of her guilt.
By referring to relevant legislation and case law in the area of employment law, write a letter of legal advice to Adam about what to do in the scenario described above.
The Scope of Employment Laws in the UK
Sub: Letter of Advice
Ref.- Case of missing money from the cafeteria
This is a response to the request of letter of advised asked by you in the matter related to missing money in your cafeteria. The subjective letter of advice is attached herewith as Annexure A for your perusal. You are requested to review the same. We hope that the same will fulfill your expectations. You are requested to consider advice provided under this report while dealing with your employee Jane in the matter of missing money.
Have a Nice day!
The relationship of an employer and employee is a trustworthy and they both are required to consider the interest of each other. In every nation, certain employment laws are there that manage and regulate the stated relationship. In the UK, employment law consists of more than one legislation. These legislations provide many aspects related to employment such as recruitment, discrimination, dismissal, health, and safety in the workplace and so on (Employmentlaws.co.uk, 2018). Both the employers and employees are required to consider the provisions of these laws while performing their roles. The same is required for the reason that courts also consider these laws while granting the decision in the cases of disputes related to the employment relationship. In the given case, Mr. Adam (hereinafter referred as a client) is facing an issue related to the application of these laws. He is the owner of a cafeteria and some money has been missed form his cafeteria as there is a difference between the total amount of bills and total money received. The suspect of this incident is a pregnant employee and therefore the investigation with her is a matter of concern. In the given report, the focus will be made on the provisions of employment law related to discrimination and dismissal. Further, by providing an idol manner of investigation, advice will be provided to the client.
In order to discuss the aspects of these laws, first, this is required to discuss that what theses legislations covers. This is to state that employment law of the nation covers almost every aspect and causes of possible dispute. The purpose of the development of employment law is to secure the rights and interest of the employer as well as employees of different organizations. In addition to this, these laws provide guidelines for running a business organization. In order to protect the fundamental rights of the employees, these laws consist the provisions related to remuneration, leaves, working environment, working hours of employees and many others. The employment law is considered as one of the oldest laws in the UK. Moving the focus towards anti-discrimination law of UK, the most significant legislation is Equity Act 2010. The act has been developed with a sole purpose that is the prevention of discrimination. Before this act, many other legislations were there to resolve the matters related to discrimination at the workplace. In the development of this act, nine legislations has been harmonized such as Employment Equality (Age) Regulations 2006, the Sex Discrimination Act 1975, the Equal Pay Act 1970 and six others (Equalityhumanrights.com, 2010).
Equity Act 2010
Apart from the mentioned aspects, these laws also provide provisions related to trade unions. Trade Union and Labour Relations (Consolidation) Act 1992 is one of the important employment legislation of UK. Trade unions can be understood as an organized association of employees/workers in a trade or group of trades that protect the rights of workers. These unions are there to make the relationship between employer and employees smooth. These laws applicable throughout the UK. Further, for the welfare of employees too, these employment works in an appropriate manner. For each kind of possible breach of provisions of these laws, penalties are there to impose.
As mentioned above this act provides the provisions related to discrimination, this is the reason that this legislation can be termed as anti-discrimination law. According to this act, discrimination is an act of an employer where he/she treats one or more employees less or more favorably in comparison to other employees. The employer makes such discrimination based on personal features of employees that can be anything like age, gender, race, religion and so on. The subjective act i.e Equity Act 2010 provides nine protected characteristics, based on which an employer cannot make any discrimination with any of his/her employees (Sargeant, 2017). Apart from these characteristics, some fair grounds are there. An employer can dismiss an employee based on these grounds. The same is mentioned below:-
- Statutory requirements
Further, the act defines six kinds of discrimination out of which direct and indirect discrimination are the most common kind (Legislation.gov.uk, 2018). The same is detailed as hereunder:
- Direct discrimination:- When an employer treats an employee in a less favorable manner because of his/her protected characteristics, then such discrimination is known as direct discrimination (Citizensadvice.org.uk, 2018). For instance, dismissing an employee because of his/her religion comes under the category of direct discrimination.
- Indirect discrimination:- In an indirect discrimination, an employer places some policies which are applicable on all the employees equally but has some nature that put the other employees in a less favorable situation in comparison to others (Eoc.org.uk, 2018). For instance:- By disallowing week offs of employees in the festive season can put many of the employees in a situation of a disadvantage especially married employees as they have more social commitments in comparison to others.
Employment law of UK provides many of the rights to employees that safeguard their interest. These rights include right against unfair dismissal, right not to be discriminated, right of limited working hours, family-friendly rights and many others. Here in the given case, the client will have to deal with the right against unfair dismissal that is available to Jane. According to this right, an employee can bring an action against the employer in cases of unfair dismissal. Many of the cases have happened there where tribunal gave the decision in the favor of the employee and held the employer liable for the unfair dismissal. Therefore it is advisable for employers to dismiss an employee based on proper grounds.
At many incidents, the employee does certain conducts which force an employer to dismiss such employees. These acts of employees are known as misconduct. Misconduct is a proper and justified ground of a dismissal. Now the issue is to check that whether an employee is liable for misconduct in actual or not. The case of British Home Stores Ltd v Burchell  ICR 303 is far significant to study which is related to dismissal based on misconduct. In this case, the employer had doubt on his employee that the same has performed misconduct and he dismissed the subjective employee on the ground of his doubt. The employee further brought an action against the employer and tribunal provided a decision in the favor of employee considering the act of employer as unfair dismissal. In the process of appeal, employment appeal tribunal granted decision in favor of the employer. It is a significant case in the area of employment law as the same has set out certain principles. It was given in the decision of this case that at the satisfaction of the following three conditions, an employer can dismiss an employer and such dismissal will be treated fair dismissal. These conditions are as follow:
- The employer is required to have beliefs about the misconduct of the employee.
- There must be some grounds supporting the believe mentioned in aforesaid point
- The employer is required to follow a well-defined procedure of investigation before dismissing such employee.
Rights of Employees
In a conclusive way, all these three conditions are known as Burchell test. According to the decision of the above-mentioned case, an employer can dismiss an employee for his/her misconduct even if there is no evidence which proves guilty of the employee. However, for doing this, Burchell test needs to be satisfied. While hearing and granting decisions in the cases of dismissal cause of misconduct, judges use this case as a reference.
In the given situation, the first two conditions are Burchell test gets satisfied. As the client has a doubt on Jane and further he has grounds to believe that on her guilty. The reason behind the same is saying of another employee Hillary who saw Jane behaving suspiciously and informed the same to the client. In order to dismiss Jane, the client is advised to satisfy the third condition of Burchell test first which required a proper investigation. Now the question is what proper investigation is. This is to mention that the Advisory, Conciliation, and Arbitration Service (ACAS) has released some guidelines in respect to idol procedure of investigation. After following this procedure, the client will be eligible to dismiss Jane. He can do the same even without satisfying the Burchell test but in that situation tribunal can held him liable for the unfair dismissal based on the pregnancy of Jane, therefore it is advisable to follow the procedure mentioned under the law.
These guidelines provide a procedure that an employer must follow while doing workplace investigations. Some acts are mentioned in the guidelines that are required to be done by an employer in the process of workplace investigation (Acas.org.uk, 2015). Firstly, he/she should plan the whole procedure and then after preparing the documents accordingly. Afterward, an employer is required to act in a fair manner while this kind of investigation along with following the steps mentioned in the guidelines. In addition to the procedure mentioned in the guidelines, some other aspects/acts need to be considered according to the situation of the case. The same is mentioned as follow:-
- Right of Accompanying:- At many events, it happens that employee faces certain issues while the investigation meeting. The same can be for any reason. For instance, an employee may feel uncomfortable because of his/her personal relationship with the employer. Language can be another problem. In the provided case, suspected employee Jane is a pregnant employee. In such a situation, it is advised for the client to provide her the right to be accompanied considering her physical health situation.
- Confidentially:- An employer is also required to keep the confidentiality in the investigation process, therefore he/she is required to carry such investigation in a separate room. The same is also required for another reason, as many times, employees feel offended in a discussion of an open room. In the referred case, it can be offensive for Jane to be a part of an open area discussion as the allegation is related to the thief of money that can defeat her reputation.
Apart from the above two acts, the procedure set out under ACAS guidelines is also required to follow. As Jane is a pregnant employee, there is a high chance that tribunal can held the client liable for the unfair dismissal based on her pregnancy. However, the pregnancy of Jane cannot prevent her dismissal yet client is required to consider some additional point while dealing with her in the process of investigation. These points are mentioned herewith:-
- The client needs to ensure that all the conditions of Burchell test are satisfied.
- In the investigation process, Jane is treated equally to other employees.
- All the disciplinary policies are applied fairly and consistently.
- There is no ground for Jane, which can prove the discrimination.
Firstly, to understand that there is one more kind of misconduct this is known as gross misconduct. Gross misconduct can be understood as a serious kind of misconduct (Goschen, and Eccleston, 2012). A gross misconduct refers to an act of an employee, which breaks the trustworthy relationship of employer, and employee (Macdonald, 2008). In a general situation, a pregnant woman cannot be get fired from an organization for any reason except for some reasons. Gross misconduct is one out of such expectations. An employer can dismiss an employee during the pregnancy if she is guilty of a gross misconduct. Further, courts often check that whether the act of an employee is a misconduct or gross misconduct because provisions are different related to both of these terms. Under a misconduct, an employer is required to serve a notice to the employee before dismissal according to the requirements of law or employment contract but the same is not required to serve in the cases of gross misconduct (Cartwrightking.co.uk, 2018). As mentioned earlier that gross misconduct is a serious type of misconduct yet employer can directly dismiss an employee. In a summarized way this would not be wrongful to state that in the cases of gross misconduct employer gets exclusive powers to dismiss an employee including the pregnant employee (Maternityaction.org.uk, 2018). Further, certain terms are mentioned in the law, in the existence of which an employee will be eligible for maternity pay (Xperthr.co.uk, 2018). A dismissal cannot be treated unfair just because of the involvement of pregnant employees. The provisions are made to grant remedies to the employer in genuine cases so that employees cannot take unfair benefits of their pregnancies.
To conclude the report presented along with a letter of legal advice this is to be mentioned that the client is required to be more focused while dealing with Jane. There are high chances of being liable for an unfair dismissal. In order to avoid such allegations, the client is advised to plan and operate an investigation process. In this process, the same is required to treat Jane in a fair manner and to provide her right to be accompanied so that in future she would not make an allegation stating that she was not able to take part in the investigation because of her physical conditions. The client is also advised to carry out the investigation meet in a separate room so that Jane does not feel offended. At last, the case is a related top thief but just because of this reason the same cannot be considered as a gross misconduct. Here client can close the matter by providing a warning to Jane. In the presented report, many of the aspects related to discrimination and unfair terms have been discussed. The client is required to consider all of them and then to make any decision. He can dismiss Jane but before doing so he is advised to ensure that all the compliance is in place and there is no ground on which an unfair dismissal can be set out before tribunal against him.
Acas.org.uk. (2015) Conducting workplace investigations. [online] Available from: https://www.acas.org.uk/media/pdf/q/0/Conducting_Workplace_Investigations_Nov.pdf [Accessed on 13/12/2018]
British Home Stores Ltd v Burchell  ICR 303
Cartwrightking.co.uk. (2018) Gross Misconduct. [online] Available from: https://cartwrightking.co.uk/areas-of-practice/Employment/gross-misconduct/ [Accessed on 13/12/2018]
Citizensadvice.org.uk. (2018) Direct discrimination. [online] Available from: https://www.citizensadvice.org.uk/law-and-courts/discrimination/what-are-the-different-types-of-discrimination/direct-discrimination/ [Accessed on 13/12/2018]
Employment Equality (Age) Regulations 2006
Employmentlaws.co.uk. (2018) Employment law in the UK - free law guide. [online] Available from: https://www.employmentlaws.co.uk/ [Accessed on 13/12/2018]
Eoc.org.uk. (2018) The Equality Act. [online] Available from: https://www.eoc.org.uk/the-equality-act/ [Accessed on 13/12/2018]
Equal Pay Act 1970
Equalityhumanrights.com. (2010) An introduction to the Equality Act 2010. [online] Available from: https://www.equalityhumanrights.com/en/equality-act-2010/what-equality-act [Accessed on 13/12/2018]
Equity Act 2010
Goschen, K. and Eccleston, D. (2012) The Manager's Guide to Discipline. USA: Gower Publishing, Ltd.
Legislation.gov.uk. (2018) Equality Act 2010. [online] Available from: https://www.legislation.gov.uk/ukpga/2010/15/contents [Accessed on 13/12/2018]
Macdonald, L. (2008) How to Manage Problem Staff Successfully. UK: Straightforward co Ltd.
Maternityaction.org.uk. (2018) Pregnancy discrimination. [online] Available from: https://www.maternityaction.org.uk/advice-2/mums-dads-scenarios/pregnant/pregnancy-discrimination/ [Accessed on 13/12/2018]
Sargeant, M. (2017) Discrimination and the Law 2e. Oxon: Routledge,
Sex Discrimination Act 1975
Trade Union and Labour Relations (Consolidation) Act 1992
Xperthr.co.uk. (2018) Bookmark Print Email to colleague If an employer dismisses a pregnant woman for gross misconduct must it still pay her maternity pay. [online] Available from: https://www.xperthr.co.uk/faq/if-an-employer-dismisses-a-pregnant-woman-for-gross-misconduct-must-it-still-pay-her-maternity-pay/58092/ [Accessed on 10/12/2018]
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