Employment Law Issues in the United Kingdom - Case Study Example

Employment law issues Case 1 and Case 3 Customer Inserts His/her Name Customer Inserts Grade Course Customer Inserts Tutor’s Name 22, 12, 2010 Case 1 Facts about the case In this scenario, Preston pet products, a company that deals with the distribution of pet product and dog chews and other accessories and equipments is faced with a situation that involves small van drivers. The company had initially allowed the small van drivers to take the vans to their homes and even start their duties directly from their homes. This practice has suited both the company and the van drivers. The company has however withheld this privilege after considering the possible insurance implications and security of the vans. The company issued the notice to the drivers for a period of four weeks; drivers complained about the issue but later accepted the change. Three drivers however resisted the change and claimed that the company was depriving them their job’s privilege that they have been enjoying since they were employed in the company. After three weeks of the notice issue for the policy change, some drivers have stopped taking the vans home while others have not stopped. With regard to the main statement of terms and conditions, of employment; it is not stated whether the drivers should take the vans home or not. The managing director is now worried of any legal implications possible if the company’s drivers decided to take the action to the tribunal. Analysis of the case The United Kingdom law provides a number of privileges that employee should enjoy while working for a company. Such rights and privileges include payments, bonuses and other rewards stated before the start of a contract. The benefits attributable to an employee are usually expressly indicated in the contract but sometimes these are benefits which employees do enjoy are implied with consent from the employer. The implied benefits mainly due to the customs and practises of the company do constitute employment contract. Though the terms are not written down, the employer will be overruled from denying the legality of an accepted practise. In the case of Henry and others v London General Transport Services Ltd , the employer; London General Transport Services Ltd relied upon customs and practices of the company to defend its case against the employees. Here the employees agreed to the union negotiated terms and even signed new contracts indicating their acceptance but after two years they filed a petition claiming their wage balances. It was held that there was a valid contract between the employees via their union and the employer therefore employees were bound by a long held tradition of negotiating for their wages via their union. In our case the long held tradition that the small van drivers had a privilege of driving company vans to their homes had formed part of the employment contract with Preston pet products. Preston pet products’ idea of ensuring security of their vans by instituting compliance to the insurance regulations needs immediate attention and it is also in the interest of the company that the compliance is endorsed. The insurance cover also includes employee interest and if Preston pet products ltd could sit down and negotiate with the drivers for them to have a common stand then all will be better. For now what is at stake is the fact that the few drivers complaining do a have a favourable ground for their complaint. Employment tribunals handle a wide range of employment issues and in this case, action by Preston pet products can amount to a breach of employment contract which is under the jurisdiction of the tribunal (Moffat 2006, p.350). For any changes in the terms and conditions of employment to be effected by the employer, they should be consent and acceptance by the employee. This therefore means that any changes in the terms and conditions of work whether express or implied should be an all inclusive process that takes into consideration the interest of all parties to it (Berry & Hargreaves 2007, p.239). Changes to the terms and conditions of employment by the employer must meet the following criteria; 1. The employer must establish a genuine business need to warrant the changes or changes in the economic conditions or business environment. 2. The business reasons must be substantial 3. The changes must also be reasonable 4. The employer must follow the required procedure of involving all the parties to it. Effective variation in employment contract by the employer must meet the following standards as per the Employment Rights Act 1996; I. Both parties to the contract must agreed to the variations II. The employer initiating the changes must fully engage the employee or their union III. It is advisable to document the changes in writing but verbal agreements can also be accepted. IV. The employer must give a reasonable notice period to the employee probably one month. Where an employer imposes changes the terms and conditions of employment without prior involvement of the employee, this will constitute a breach of contract and the employee has the following remedies; first the employee can quit the employment and make a claim for a constructive dismissal for the employment tribunal especially where there has been substantial breach of contract (Estreicher 2010, p.460). Secondly, the employee continues to work under the new contractual terms but protest, clearly indicating his/her discontent with the new contract. Here the employee can seek redress for the courts of law or the employment tribunal. For a case like in Preston pet products Ltd where the employer unilaterally makes changes to the employment contract, the employee can claim constructive dismissal as held in the case of Lee & ors v GEC Plessey Telecommunications. This case indicated the legal vulnerabilities an organization can land into by unilaterally making changes to employment contracts without a constructive involvement of employees. Conclusion of the case based on analysis Preston pet products managing director, Mr. Mark Smith should understand that changes to the terms and conditions of employment does not just constitute the express contractual terms and obligations but also the implied customs and traditions which have been held in the company. Though the reason for making changes to the driver’s perceived benefit is genuine, Mr. Smith should involve them in making the changes to the terms of their employment as this directly affects them. Without proper consultation and further continuing with the current notice, Mr smith will be engaged in a fundamental breach of employee’s contract and may subject the organisation to litigations which might result is a contingent liability of not more than £25,000. It is therefore advisable that Mr Smith Should halts the progress of implementing the changes immediately and constitutes a joint team of management and employees to spearhead the changes in the terms of employment. This will ensure that the resultant changes shall be binding on all drivers and cannot subject the organisation to legal and reputation risks. Mr Smith is in fact having a genuine business need for the intended changes and not just based on the need to deny employees their benefit. It is only prudent if Mr. Smith would be compliant to the employment regulations. Case 3 Facts about the case This case involves Preston pet products a company that deals with distribution of pet product and dog chews with other accessories and equipments and Paul Grimethrope who is a loader in the company’s warehouse on a full time basis. Paul initially blames himself after being sacked as a result of his poor conduct. Paul was instantly dismissed without notice or disciplinary hearing after it was felt pointless to forward his actions to the disciplinary. The cause of his dismissal was drinking strong ale and committing acts of violence in the company. One afternoon he drunk four pints of strong ale in a pub, he later came to the company swore loudly to his colleagues in full glare of other colleagues and the manager. Warehouse supervisor reprimanded him but instead, Paul responded in an abusive manner. Paul was also seen punching the supervisor on the left jaw which led to his instant dismissal at the workplace. Paul job’s attendance over the past few years was poor although his record was slowly improving and his general record was capable worker but a time a troublemaker. Mark Smith the managing director was not there when Paul was dismissed but he supported the dismissal pointing his actions as flagrant breach of company’s rules. The company’s procedures of disciplinary points out that drunkenness and violence on the company’s premises were grave offence. After the dismissal, Paul threatened to bring an employment tribunal claim of unfair dismissal against the company unless he was given back his job. Mark is now worried of any possible legal actions that Paul could claim and he therefore seeks advise. Analysis of the case In the United Kingdom, Law that guides unfair dismissal are outlined in order to safeguard the interest of the employees from unfair dismissal. Employment Rights Act 1996 provides the timeline for the notice of dismissal to be issued to an employee. An employer should however issue notice of dismissal upon reasonable occurrence such as redundancy or misconduct. In essence the employer has the right to dismiss an employee under such circumstances. It is however the duty of the employer to ensure that the employee is issued notice of dismissal prior the date of dismissal. As evident in the case of Gasda Cyf V Barret, the essence of letter reception was intentionally not read by Mr Barret upon submission and hence the case favoured the employer Gasda Cyf since the warning and date of dismissal which was 30 November was mentioned to her and the letter reached her at that date. This case shows the importance of a written letter and the duration of reception upon submission of the letter. The employer should also seek legal advice before continuing with the dismissal, this is mainly important in ensuring that the dismissal was carried out in a legal manner since the dismissal process is usually complex. They are also complex even if the reason for dismissal is clear cut. Failure to seek advice may lead to unfair dismissal which results in high compensation to the employee or even or even re-employment. The amount of compensation can go beyond £ 50,000 depending on the loss experience by the employee. The case of Parkinson v March Consulting Ltd shows how important it is to dismiss an employee rightfully, Parkinson was dismissed with a notice but the tribunal had to establish if the legal process was followed by March Consulting Ltd. The Code of Practice on Disciplinary and Grievance Procedures act of 2000 requires that the employee be informed their misconduct and given an opportunity to respond to the allegations (Arup 2006, p.247). In this case, Paul was dismissed instantly after breaching the company’s laws on drunkenness and violence on the company’s premises which was treated as grave offence. Paul blamed himself for the dismissal and his actions were also witnessed by his managers and colleagues who supported the dismissal. Paul however threatens to seek legal justice through employment tribunal unless the company re-employee him. With consideration of the employees act and the legal procedure for employee dismissal, the company failed to meet the following legal procedures while administering the dismissal process. I. There was no dismissal notice stating the date of dismissal and the reason of dismissal prior to the dismissal. II. There was no disciplinary hearing on the case despite its obvious breach in accordance to Code of Practice on Disciplinary and Grievance Procedures act of 2000. III. The employer did not seek legal advice prior to the dismissal of Paul in the company given the complexity of employee dismissal even with a clear cut reason. IV. The company also failed to use legal procedure in dismissing Paul as stated in the Employment Rights Act 1996, Paul was not in a position to ask for the dismissal letter which was to be provided in a period of 14 days. Based in this facts analysed, in the event of a case of Paul v Preston pet products, Paul is likely to prevail and claim compensation or re-employment if the case was to be taken to the employment tribunal despite the clear misconduct on the part of Paul. The rationale for this is because the company failed to adhere to any legal rules or procedure of employee dismissal and thus resulting in unfair dismissal of the employee. Conclusion of the case based on analysis My advice to the managing director Paul Smith will thus be to re-employ Paul in the company and continue with his job in the warehouse despite his gross misconduct. The rationale for this is the financial loss that the company may incur in the event of presentation of a case against Preston Pets Ltd. Paul is highly likely to win the case despite his gross misconduct because the company failed to follow the legal procedure of issuing a written notice of dismissal prior the date of dismissal, no legal advice sought by the company and no legal procedure was used to dismiss Paul. The company could therefore end up paying Paul a heavy compensation of up to £50,000 or re-employing him again. References Arup, C 2006, Labour law and labour market regulation: essays on the construction, constitution and regulation of labour markets and work relationship, Federation Press, London.PP. 242-253. Berry, E & Hargreaves, S 2007, European Union Law, Oxford University Press, Oxford. PP. 234-256. Davies, A, 2011, Workplace Law Handbook 2011 - Employment Law and Human Resources Handbook, Workplace Law Group, London. PP. 272-274. Estreicher, A 2010, Global Labor Employment Law for Practicing Lawyer, Kluwer Law International, Manchester. PP. 452-533. Gasda Cyf V Barret (2010) EDT 17. Henry and others v London General Transport Services Ltd [2002] IRLR 473 CA Holland, J & Burnett, S 2007, Employment Law, Oxford University Press, Oxford. PP. 123-132. Lee & ors v GEC Plessey Telecommunications [1993] IRLR 383 CA Moffat, J 2006, Employment Law, Oxford University Press, Oxford. PP. 344-356. Parkinson v March Consulting Ltd (1997) IRLR 308 CA. Read More