Employment Law and Employee Relations Assignment The WritePass Journal

Employment Law and Employee Relations Assignment Introduction Employment Law and Employee Relations Assignment ) as well as the non-statutory guide that is also created by ACAS. More formally, S98 of ERA states that in order for an individual to be dismissed the employer is required to have acted reasonably and following a suitable disciplinary process would be a key component of this. In the event that the process is not followed and Frank then claims unfair dismissal the failure to follow the process could result in an uplift of any award by 25% (Section 207 of Trade Union and Labour Relations (Consolidation) Act 1992). Firstly it is necessary for the employer to consider whether formal action is necessary. It is not clear whether previous misdemeanours or poor performance has been dealt with formally or informally and this should be looked at as a matter of priority. However for the purposes of this advice it is suggested that these have not been dealt with formally in any way. Where a discussion is to be recorded formally on the record of an employee, as is likely to be the case her section 11 of the Employment Relations Act 1999 will become relevant and the statutory right to be accompanied needs to be taken into account. It was confirmed in the case of Sarkar (2010) that where the disciplinary could result in dismissal it is not acceptable to use an informal process. The potential loss here is substantial and therefore it is possible that the Council could be looking at gross misconduct. Frank has the qualifying period of 2 years service and could therefore potentially claim unfair dismissal making it vital that the processes are followed correctly.   The employer needs to act promptly as if it fails to indicate the severity of the situation to the employee there is a danger that it would be seen to have affirmed the contract and accepted the employees repudiatory breach (Cook, 2009). A full investigation is necessary which will then potentially lead to the disciplinary procedure. The position of the employer should however be reserved for the duration of the investigation. During the investigatory meeting and the disciplinary meeting (if there is one subsequent) the employee has the right to be accompanied. The level of investigation necessary is dependent on the severity of the accusation (A, 2003). Where an employee is at a serious risk of long term impact for example being dismissed and receiving a professional detriment a much more thorough investigation is required. Based on this and the underlying need to act reasonably Frank should be suspended in order for the investigation to take place. He should be informed of his rights and obligations during the period and also how long he is likely to be suspended for. As the conduct is sufficiently severe that it could result in dismissal this is a crucial step and the investigations should be very thorough. There are concerns that the Council has been aware of performance issues and has not yet dealt with the matter. Furthermore it would seem unreasonable that a junior individual was able to make such a costly error and this will have to be born in mind when determining the severity of the disciplinary process to be followed. Sally Sally’s contractual status is questioned initially as she is currently working various hours with a weekend on call every month. Sally has been located at the Council office for 3 years with a set desk and specific hours. This level of control is considered to be sufficient to comply with the definition of employee as per section 230 of the ERA 1996. This is a matter of fact and law and it is suggested that as she was required to personally preform the contract and the Council had a high level of control she would be deemed to be an employee (Carmichael, 2000). Based on this it would be the case that Sally is entitled to the statutory minimum holiday which is 20 days (excluding 8 bank holiday days). Sally has requested a change to her current working hours which is dealt with a flexible working request and secondly she is likely to be interviewed alongside others for the full time vacancies which have now arisen, should she wish to apply and would not want to be discriminated against by virtue of her caring role for her terminally ill mother. Since June 2014, employees with at least 6 months’ continuous service have been able to apply for flexible working for any reason. The employer is then under a duty to deal with the request in a reasonable manner and be fair in the way that they treat the application (Duncan, 2012). Crucially, in accordance with section 13 of the EqA it is possible for an employer to be directly discriminating against an individual who is treated less favourably due to the disability of an associated person (Coleman 2008). This situation is potentially difficult for the Council to manage and there is at least some argument that Sally is not in fact an employee. On balance however this is not a valid argument given the prescriptiveness of the hours of work and the physical base in the council as well as the personal nature of the services provided. The Council would therefore be required to provide paid holiday and to provide Sally with her contract of employment. Furthermore any requests for flexible working would need to be dealt with fairly and when looking to fill full time roles, Sharon would have to ensure that she did not discriminate against Sally as this could result in disability discrimination despite the fact that the disability is not suffered by her directly.   Conclusions In summary, Jim should be offered a full and diligence grievance procedure to prevent him resigning and later claiming constructive unfair dismissal by virtue of sexual orientation discrimination. Frank should be dealt with formally through the use of the disciplinary procedure with a full investigation and if necessary a disciplinary that conforms with statutory requirements. Sally is, on balance, an employee and needs to be managed with due care to the disability discrimination rules and the need to be fair and reasonable when considering any flexible working requests. References ACAS (2012) Disciplinary and Grievance Procedures Available at: acas.org.uk/media/pdf/k/b/Acas_Code_of_Practice_1_on_disciplinary_and_grievance_procedures-accessible-version-Jul-2012.pdf A v B [2003] IRLR 405 Carmichael v National Power plc [2000] IRLR 43, Coleman v Attridge Law and another [2008] ICR 1128 Cook v MSHK Limited and another [2009] EWCA Civ 624, Corus Hotels plc v Woodward and another UKEAT/0536/05, Duncan, N (2012) Employment Law in Practice, City Law School (London, England, Oxford University Press) p.216 Employment Relations Act 1999 Employment Rights Act 1996 Equality Act (2010) Martin v Parkam Foods Ltd ET/1800241/06 Sarkar v West London Mental Health NHS Trust [2010] IRLR 508 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 (HL) Trade Union and Labour Relations (Consolidation) Act 1992