PH311 Employee Law And Relations

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Question:

Case

Des and Sarah Cole were the owners of a wine shop. They received letters threatening legal action from several lawyers on behalf their employees.

The employees claimed they were being unfairly dismissed, discriminated on the basis of gender, or breached the work timing guidelines.

Employer and employee conflict rises because there is no proper model for human resource management.

Proper human resource management reduces conflicts by improving communication between employees and employers.

Des and Sarah are not able to properly manage their human resources.

There were no guidelines to guide different employee activities.

The organization does not have a system for managing their human resources.

Des and Sarah should establish a management system to avoid future conflicts with their employees.

Des and Sarah need to compensate their employees for any difficulties they cause.

Task 1

Des and Sarah are not familiar with employment law so please explain each claim and its legal basis to them.

Task 2

Analyze the relative strengths and weaknesses of each case. Des or Sarah can then outline defenses they might be able use to defend them.

Task 3

Analyse the circumstances and discuss how Des and Sarah could’ve avoided conflict in this instance.

Your answer should include examples of good practice, such as ACAS or CIPD, and any relevant human resources management models and frameworks. This will help Des and Sarah make future recommendations.

Answer:

Introduction

The United Kingdom has a civil employment law.

The criminal law plays an important part in employees’ health and safety.

Acts of Parliament and guidelines issued by governments, laws of Europe, codes of practices, general regulations, and laws of the European Union are just a few of the sources of employment legislation.

Employees have rights such as heath and retirement, unfair discrimination, dismissal, heath and unfair dismissal.

The terms and rights of employees can be defined by the contract of employment.

Contract of Employment is an agreement between employee and employer that defines the conditions, rights and responsibilities of employment.

Both parties must adhere to the terms of the contract.

If either party breaches the agreement, the aggrieved can bring a suit to recover.

Task 1

Des and Sarah Cole’s employees filed four claims.

They were alleging discrimination on the grounds of gender, dismissal for no justifiable reason and breach of work timing.

Diane, who oversees the shop’s daily activities, filed the first complaint.

She was injured in her neck when she fell down from the shop’s staircase. It took her four months to recover.

Des and Sarah visited Diane, and decided that Diane is not able to continue the shop’s operations in the near future.

Bell 2009: After discussing the matter, their insurance company offered Diane a one year salary as a payment towards the final and full settlement.

Des and Sarah were both discriminated on the grounds that Des was disabled and dismissed without justifiable reasons. Diane threatened legal action (Barnes 2005).

An employer can’t discriminate against or dismiss any employee due to disability.

The employer must make’reasonable adjustments to accommodate the disabled employee within the organization.

Diane was unable to return to work after her neck injury took four months.

Des and Sarah discussed this with Diane. After talking with their insurance company, they decided to terminate her employment.

They offered to pay her PS25,000 in salary for one year.

Diane made a claim that was not relevant (FBA 2011,

Graham’s lawyer brought the second claim on the grounds of dismissal without cause (Colling 2004).

Des dismissed Graham for fraud. He had illegally imported wine to sell it in order to reap unfair profits.

Jack was a part of the fraud, but he wasn’t fired. Instead, he received a written warning and was reinstated.

According to the 1996 Employment Rights Act, the employer must provide a rational explanation for the employee’s termination.

Graham’s claim to be dismissed is unfounded, as he has already confessed to his crimes.

Kelly’s lawyer threatened Kelly with a lawsuit for constructive removal, discernment on gender basis and violation of principles of Public Interest Disclosure Act unless Kelly was paid a PS20,000 compensation.

The employer may make a constructive dismissal if it violates an employee’s employment contract. Kelly is then required to resign due to her employer’s conduct (The Employment Rights Act, 1996) (Smith 2001).

The Equality Act 2010, protects employees from discrimination in the workplace.

The Public Interest Disclosure Act (1998) protects whistleblowers from being treated unfairly by their employer.

Kelly provides Des with information about Graham and Jack, which resulted in Kelly’s car being damaged. Kelly was also suffering from stress in the workplace.

Kelly is entitled to be compensated by her employer for the loss she sustained as a result of whistle-blowing (Martin, 2003).

Kelly claims that Kelly has committed gender discrimination.

Ralph’s lawyer threatens to file a lawsuit against him, claiming a dismissal without justification and violation the principle of Working Time Regulations.

Ralph agreed to the option of opting out from the 48 hour work week.

The Working Time Regulations provide that employees can cancel an agreement to opt out at any time and that their employer cannot dismiss them for doing so.

Des may offer Ralph compensation for the grounds of dismissal due to unjustifiable reasons (Hepple 2005).

Task 2

Diane’s advocate is threatening to sue Des and Sarah Cole for discrimination on the basis that she was disabled and unfairly dismissed.

Diane couldn’t come to work for four month due to her neck injury. This was caused by her fall from the shop’s stairs.

Des and Sarah met Diane to discuss her condition. They decided she was unable to return to work in the near-term.

After consulting with their Insurance Company, Woodhams 2003, they agreed to compensate her for the PS25,000 salary as a final settlement.

Diane claimed she was unfairly terminated because of her disability. Diane demanded an increase in her settlement to PS50,000.

The Equality Act 2010, 2010 protects employees against discrimination from employers based on their race, gender, and disability.

Even if discrimination is intended to be positive, employers cannot discriminate against employees.

Diane’s claim of discrimination is without merit.

Diane was unable and unable to complete her duties because of her neck injury. This was even after four months. Diane will not be able to return to work for at least the next four months.

Sarah and Des are able to use the defense that the employer can dismiss an employee on grounds of inability to do their job.

Graham’s lawyer claimed his employer gave him unreasonable reasons for his dismissal.

Graham and Jack were found guilty for illegally selling and importing wine bottles.

Their combined profit was less than PS100.

Both of them admitted to their crimes, Graham was fired for his acts, while Jack received only a written warning.

Graham claimed that Jack had not made the same profit as him, so the reason for Jack’s dismissal is unreasonable (Marinescu 2011.

The 1996 Employment Rights Act requires employers to provide sufficient reasons for a worker’s dismissal.

Graham may be dismissed by Des for gross misconduct because he has admitted to fraud. Graham cannot use this as a reason to dismiss Graham.

Graham cannot use Jack’s failure to get fired as a grounds of unreasonableness to dismiss him.

Kelly made claims regarding constructive dismissal, discrimination based on gender, and violation of principles of Public Interest Disclosure Act.

Kelly was a whistle-blower. She gave Des information concerning the fraud of Jack. Therefore, Graham or some of his friends destroyed her car and wrote’snitching littlech’ on the bonnet.

Sarah suggested that Sarah pay for her expenses. Sarah disagreed.

Because of the intense stress at work and the insensitive response she received from her employer, she decided that she would resign (England 2010).

According to the Employment Rights Act 1996, constructive dismissal can be defined as the act by an employer of causing the employee’s resignation in violation of their employment contract.

The Equality Act (2010) protects employees from discrimination on the basis of gender, race, and disability.

A whistleblower can request protection from threats and discrimination under The Public Interest Disclosure Act.

Kelly is entitled to compensation from her employer. Sarah’s act forced Kelly to resign, and Sarah violated Principles of the Public Interest Disclosure Act. Sarah did not protect Kelly from discriminating behavior.

Her employer can reimburse her.

Kelly’s constructive dismissal resulted in the invalidation of her claim for discrimination on the grounds of gender.

Ralph was awarded a sum in the amount of PS15,000 for his dismissal and the violation by the employer of the principle under the Working Time Regulations.

Ralph has an opt-out agreement that restricts him from working more than 48 hours per week. He can, however, cancel his agreement under the Working Time Regulations at any time.

Employers cannot fire an employee who has canceled his opt out agreement (Selwyn, 2014).

Ralph refused to work three weeks straight without a holiday, and Des fired him.

This is a reason to terminate an employee for a nonsensical reason and violates the Working Time Regulations.

Des should therefore compensate Ralph for his unreasonable dismissal and reinstate Ralph to the post.

Task 3

Des and Sarah could employ a model of human resources management to avoid conflicts between the employer and employees.

You can create an informed and engaged workplace environment by using the right model for human resources management.

Human resource management, or HRM, could increase employee turnover, improve performance, and foster a relationship between employer & employee (Foot 2008).

Diane’s case shows how a better management of human resource could have prevented conflict between employer/employee.

Des and Sarah would have had to adopt a suitable HRM model.

Diane’s injury should have been supported and safety precautions taken.

According to CIPD (Chartered Institute of Personnel and Development), the employer must take all necessary steps to support disabled and injured employees upon their return to work.

Employers should have open discussions with employees about their personal circumstances to make the process easier.

Hartman v South Essex Mental Health and Community Care NHS Trust [2005] EWCA Civ 6 case illustrates the importance for employers to provide a work environment that is conducive to employee well-being.

Six suits were filed by six employees alleging stress in the workplace.

Diane was entitled to proper support from her employer at the time of her accident.

To make workplace adjustments, the employer must communicate effectively with the employee who was injured.

Des and Sarah agreed to pay Diane PS25,000 after consulting with the Insurance Company.

Diane’s suit against her employer could have been avoided if there had been better human resource management.

Employees who commit gross misconduct must be punished by the organization.

The code of ethics should be followed and employees must be punished accordingly.

Des’ decision to dismiss Graham from his job was right, but Jack received the same punishment.

This leads to conflict between Graham and Des.

This causes conflict between Graham and Des.

According to CIPD, human resource management should keep an eye on employees to prevent fraud.

If an employee commits fraud, the HRM must investigate and collect evidence.

Employees should have the opportunity to speak up before any action is taken against them.

Employees should be punished accordingly after they are convicted of the crime.

Employees who are involved in a criminal act should all receive the same punishment.

It should not be possible to discriminate between employees’ punishments.

Des and Sarah didn’t have any provisions that would protect whistle-blowers.

Kelly informed Des about Graham and Jack’s fraud, which gives Kelly protection under the Public Interest Disclosure Act.

Human resource management models must include provisions for whistle-blower protection.

Kelly can claim compensation for the car she caused to her whistleblowing.

According to Advisory, Conciliation and Arbitration Service (ACAS), employees can not be dismissed because of whistle-blowing if the disclosure is made for the public good.

The policies must be in place to ensure that whistle-blowers are protected.

To protect whistle-blower identity, employees should not know it.

Employers who whistle-blower employees should not be subject to discrimination (Miceli, 2009).

Des and Sarah should have had a formal HRM procedure to protect whistle-blowers.

Kelly’s car should have been paid for and Kelly’s support provided to prevent stress at the office (De Maria 2006).

Under the Working Time Regulations, every employee has the right to work for no more than 48 hours a week. However, they have the option of increasing this limit by signing an opt out agreement.

Ralph has signed an agreement to opt-out, so he can work for more that 48 hours each week.

Working for too long can have a negative impact on employee’s physical and mental health.

For employees to be healthy, it is important to have a clear structure for their work hours (Hawkins 2005).

Ralph worked straight for two consecutive weeks without taking a break.

Des should have allowed him to rest to avoid any health problems.

An HRM structure that is well-designed could have distributed work evenly among employees in order to prevent overworking.

The employee has the right to cancel his opt out agreement and the employer can’t fire him (Dembe 2005).

Conclusion

Employers and employees should agree on a model for managing human resources to avoid conflicts.

HRM facilitates communication between organizations to prevent conflicts.

Employers must take the necessary steps to ensure that their employees are safe and healthy.

The business is negatively affected if conflicts occur.

Des and Sarah are examples of how an organization must have proper human resource management.

Numerous legal notices from different employees are a clear indication of the importance and value of human resource management.

The employer must provide support to employees in managing their behaviour and offer various health benefits.

An effective model of human resources management is key to maintaining positive relations between employers and employees.

Recommendations

Des and Sarah need to adopt a model for human resource management to prevent future conflicts between employers and employees.

It should benefit both sides and protect their interests.

The model should address all aspects of an employment relationship.

The following should be included in the Des and Sarah model:

All the grounds for and procedure to dismiss an employee.

This is the procedure to punish an employee who has committed gross misconduct.

The employer may make some reasonable adjustments for employees who are disabled.

Discrimination is avoided based on gender, race or disability.

Protective and/or financial awards for whistle-blowers.

For employees’ health, better management of work times is essential.

Des and Sarah should follow the above process in their human resource management model to avoid conflicts in the future.

Des and Sarah must establish healthy relationships with their employees and communicate with them in an effort to solve their workplace problems.

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