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MAN3131 Employment Law

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MAN3131 Employment Law

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Course Code: MAN3131
University: University Of Surrey

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Country: United Kingdom

Questions:

1.A problem has arisen with a member of staff based at the Camford retail showroom.  Lucy Kent has been a receptionist/sales advisor for three years at Camford where customers come in to buy their kitchen units. There are four sales advisors at Camford; customers come into the showroom with the dimensions of their kitchen and the sales advisors’ job is to welcome them, show them the various types of kitchen available, input the client requirements into the company’s computer system and give them an estimate of the cost of the design. Lucy is paid £25,000 per year and her contract of employment states she is entitled to a notice period of four weeks. She has an unblemished record and good appraisal reports.
The company this morning has been informed by the Employment Tribunal office that Lucy has submitted unfair dismissal and wrongful dismissal claims.
You are asked to prepare a report for the Company which sets out the following:

Your advice on the legal issues involved in this scenario
What the Company needs to establish in order to try to refute the claims of unfair and wrongful dismissal if the claim reaches the Tribunal
An evaluation of the strengths and/or weaknesses of the company’s case.
What the Company should do to try to prevent the case going to a Tribunal.

2.The sales representatives in the Commercial division of Kitchen Furniture spend their mornings visiting building sites, where they measure and talk through kitchen design specifications with their builder clients. In the afternoon they come back to the main Commercial sales office at Camford, draw up detailed plans of the kitchens and work out the costs for the builders.
One of the sales representatives, Ross Bert, was asked by his line manager, Charlie Jacobs, to come in this morning to talk about his frequent absences from work. Ross has been with the company for just over 10 months. Ross has been a very unreliable worker, having had six periods of illness each of approximately 1-2 weeks duration since he started work with the company.
He is particularly concerned about the following interpersonal issues:

how will Ross’s colleagues react?
how will the clients react and if there is an issue off-site what is the company responsibility?
how should he, as his line manager, deal with any issues?

Answers:

Introduction
1.Unfair dismissal can be referred to a situation in which appropriate opportunity is not provided to claimant for proving his innocence. In present scenario same situation has been presented along with the manner of dealing and taking out appropriate solution. In order to conclude with corrective measure, the situation has been assessed in detail along with the available legal provision as well as decision made in previous case laws. Lastly recommendations have been provided in order to deal with the similar situation in future.
Findings
Unfair dismissal and wrong dismissal claims
Every individual has a right to get a second chance but in present scenario Jack has not given her a warning which is not right. Thus, the legal issue evolved is unfair dismissal as second chance was not provided to Lucy, even though she has accepted the mistake but Jack has not listened to her and starts shouting at her.
Major decision has been taken by line executives with no clear guidance
It has been seen in the present scenario that the important decision of the company are taken by executives with no clear guidance. The same implies that decisions are taken without having conversation with Pete who is the HR executive. It can be assessed that the decision of dismissal of Lucy was taken without having discussion with other senior executives. Further, it is very important for the company to take decisions with legal guidance as one wrong decision can have negative impact on company. Along with this it has been assessed that there are only some policies which are up to date and procedures for administration of human resources and remaining are obsolete policies.
Outdated formal disciplinary and formal grievance procedure
Another legal issue is implementation of obsoleteformal disciplinary and formal grievance process from the website of government without any alterations. The company should adopt latest procedure as it will assist company in taking appropriate decisions relating to organisation.
No formal training to deal with difficult issues
It is stated by Kavanagh and McRae(2017), employees of the organisation should be provided appropriate training related to addressing of difficult issues. If employees are not provided with the appropriate training than they will get panic in difficult situations like in present case. Lucy has no idea that the microwave is for display purpose only due to which she has tried to warm coffee in it which leads to fire in showroom and due to no training she was not able to handle the situation in appropriate manner.Hence, if training relating to usage of appliance was provided than the incident which had occurs could have been avoided.
Conclusion
According to Howe, Berg and Farbenblum(2018), wrongful dismissal can be defined as the dismissal of violation of agreement. In case, if someone is dismissed unethically he/she can proclaim reimbursement for all financial as well as other benefits that would have been obtained had they been dismissed in obedience with agreement. The same implies that he/she had they remained employed till the end of their time period of notice or till the finish of agreement’s specified term. Further, few contracts might define fixed amount which will be compensated at the end of contract officially, either as a substitute to giving notice or as the way of termination.On the other hand, there are some agreements which specifya fixed amount which is to be compensated when there is dismissal in violation of contract.
In order to refute the claims of Unfair and wrongful claims in case they reach the Tribunal, the company requires proving the negligence or irresponsible behaviour of the employee(Millington, 2015). As in present case Lucy did not informed HR manager or any other executive after happening of the accident. Moreover, one cannot prove the innocence only on the basis that he or she was panic due to accident. With accordance to Mohamedand Ali(2014), a responsible employee requirestaking decision with patience as well as requires informing seniors in case he or she is not able to manage the situation. In present case company might attempt to resolve the case outside the Tribunal, through providing a second chance to Lucy. Further, company could end up the employment contract through providing predetermined or reasonable amount of Lucy in order to withdraw the case from Tribunal.
Strength and weakness of company’s case
The strengths of present case are:
Irresponsible behaviour of Lucy:- When she saw that the fire was extinguishing, she got panic and without seeing what is in the bucket, Lucy has thrown it on fire due to which the fire has spread all over the showroom. It can be understood that proper training is not provided because of which she has used the oven but it is the responsibility of her that seeing the thing at least once before throwing on fire.  Thus, if Lucy has seen that there was cleaner fluid in the bucket and not the water the incident could be avoided.
Weaknesses of the case are:
Unavailability of training to workers
One of the main weaknesses in the present case scenario is the lack of training to employees regarding utilisation of equipments as well as how to react in difficult situation. Since no training has been provided to the employees due to which accident occurs. As per study of Rawling(2015) it is extremely significant that all the workers should be provided training related to the area in which they are appointed along with training relating to general training for usage of appliance. Further, as training is not given in the current case due to which Lucy does not knows that the oven was only for display purpose and not for use which leads to fire in entire showroom and dismissed of job by Jack. Further, if accidents like this happens again and again than the company will not be able to survive for long time as they have to rebuild its buildings or showrooms.
Main decisions are taken without clear guidance
Other weakness relating to company in the current case is main decisions of the company are taken by line executives without any clear guidance or following the procedure. The same implies that line executives of Kitchen Furniture Ltd take key decisions without involving manger or senior executive of the department that is decisions of human resource department are taken by line mangers without considering Pete, HR manager. One decision can impact the overall functioning of the company so it is very important to take the major decisions by communicating departmental manger (Steingold, 2017).
Few up to date policies
It is seen that the organisation has only few policies up to date as per latest trends. It is stated by Taylor and Emir(2015), that, in order to operate in efficient manner it is vital to implement updated policies as obsolete policies can be an obstacle in achieving the organisational goal. Further, it is stated by Painter and Holmes(2015) that, if the company is operating with policies which are not modified it will not be able to compete with its competitors and can also decrease its revenue.
Recommendation
In order to prevent cases from going to Tribunal Company should attempt for fair dismissal instead of unfair and wrong dismissal(Howe, 2016). A reasonable dismissal should be based on one of the five grounds. These are: person’s conduct, their ability or skills for the job, redundancy, a legislative duty or restriction segregation the employment being continued or due to the substantial reason which defends the dismissal. Along with the requirement of likely reasonable reason as a baseline, managers should also make sure that the dismissal procedure followed by them is appropriate. The same implies that disciplinary policy and ACAS Code of Practice should be followed by employers. As per study of Freyens and Gong(2017), if ACAS code is not followed it can leads to 25% enhancement to any damages rewarded to a wrongly dismissed individual.
The instance along with variants of likely fair grounds relating to dismissal of a worker is discussed below:

Conduct: The behaviour of personnel is acutely undesirable, for instance, constant lateness or drinking at work.
Ability: Workers do not have the precise aptitude to do the job or is often absent because of illness.
Redundancy: Where there is inadequate work or personnel is eradicating completely.
Other defendable reason: This is known as catch-all grounds but it must be utilised in a careful manner, since the manager has to illustrate that the reason for dismissal is right, for instance, reformation of main organisation.  
Legitimacy: In order to evade breaching of rules, such as where the loss of their driving licence implying that the taxi driver is not entitle to drive officially.

Elsbach (2014),specifies that, the ACAS code of exercise on disciplinary as well as grievances process can be practised where a manger is dismissing a worker for misbehaviour or poor recital.However the implementation of the ACAS code is not so apparent where the grounds for the activities reduce within some other reasonable reason(Davidov and Eshet, 2015). For instance, what if a worker is dismissed due to breakdown in working association?
The decision was taken is case law of Phoenix House Ltd v Stockman and another (EAT)that employers are not required to follow ACAS code in case a substantial reason is available for dismissal. In stockman, the EAT embraces that managers does not have to consider the ACAS code when there is other reasonable grounds for dismissal. The decision is divisive since it emerges to conflict with the EAT decision in Lund v St Edmund’s School Canterbury. Further, this conflict implies that it is only subject matter of time prior to be observed another case on the application of the ACAS code where there has been breakdown in faith and confidence.
2.Gender transformation is accountable as one of the most critical issues faced by an organization. The reason behind same is that a manager has to take decision from employee perspective as well as organization perspective prior to conclude any final decision. Present case study is relating to same issue. Further, a detail discussion regarding handling similar issue has been presented in order to provide justice of employee as well as to organization by assisting in taking appropriate decision.
Analysis and Findings of the case
Davidson (2016) asserts that gender transformation is very unusual case, as one has to think twice before reacting to this decision. As per study of Ahmed, Monem, Delaney and Ng(2017), it is not easy to accept these kinds of changes by colleagues. It is possible that other employee might assist the management to suspend him as they do not feel comfortable in continuing their job. Further, if he desires that colleagues accept him it is necessary to make equal effort by Ross. For example, he is very rigid in nature that is he does not like to have communication with other colleagues in the department. He should change this nature and make attempt to communicate with everyone and make familiar relationship with them. Moreover, he can also organise a meeting to tell everyone about his gender transforming. Thus, if he wants that he is been accepted by their colleagues in after the transformation of his gender he has to make good relationships. Further, in order to modify the reaction of colleagues or to determine whether they will accept him or not, an informal meeting should be conducted and discussion could be made among other employees relating to situation and solution relating to same can also be discussed. It is also necessary to assess the condition of Ross prior to taking any financial decision, as if the organization in which he works cannot accept this change, how can one assume that other will accept this significant change (Drydakis,(2017).
Manner in which line manager should deal with the issue
As per study of Jones (2016), transgender workers look mainly to HR to help them in navigating the modifications which are predictable during the transformation procedure as well as to assist with concerns that co-workers might express.Further, the level of success in a transformation is affected by an individual’s capability to retaina stable job and income in the phase of the procedure and by the level of assistance in the work atmosphere.
The HR of company should support Ross as well as legally protect the firm through complying the provision of anti-discrimination law and through observing the developing case law along with future legislation.In addition to this, HR must make sure that those protections are integrated into the strategies, practices, training and communication inventiveness.  
Metroline West Ltd v Ajaj; Ajaj v Metroline West Ltd (EAT),  
This case gives a helpful recap for personnel that deduce a worker is bogus sickness. In case of  Metroline West Ltd v Ajaj; Ajaj v Metroline West Ltd (EAT),  the EAT confirmed that a staff who makes up or overstates the effects of, an injury or sickness to take fakeill violating the implied term of faith and confidence, can be dismissed or delinquency. The same will reiterates for workers that pulling a sickie is misbehaviour, rather than an ability problem. Moreover, the same implies that a dismissal for fake illness should be based on justified reasons with justified research.
In present case there is no such fake or bogus sickness, thus the employee can claim on the company in case it dismiss the employee on an unfair basis. Thus, the line manager is responsible for providing information related to the company’s policies and guidelines for administrating a gender transformation must be broadly available for workers, supervisors and executives along with HR experts (Supanti, Butcher and Fredline, 2015). Even meeting should be organized and request relating to same should be made to higher authority in order to support the decision of the employee and to make attempt to relieve him from distress and debility due to gender change.
In Australia, a national and state law involves equal employment opportunity and anti-discrimination in the workplace. Mitchell(2017) asserts that, it is necessary to build up a workplace free from inequity as well as from harassment. Further, employer should understand its rights and duties under human rights and anti-discrimination law. Through applying effectual anti discrimination along with anti-harassment process in the company the productivity and efficiency can be enhanced(Nicolson, 2015).
Conclusion
It can be concluded from above discussion that it is not possible that to accept the person immediately after transforming by every client.  The reason behind same is that they might feel weird or uncomfortable to communicate or to work with same person. Even it today’s independent scenario; people are bounded or fixed with old thoughts, thus probability exist that client do not accept Ross after changing his gender. If clients have any problem to having deal with Ross the company can change the sales representative for specific clients. Moreover, he can be sent to have a deal with new clients. In addition, in case he is not comfortable than he will be asked to do the inner work of the company. If Ross is not satisfied with the same or if company is facing any difficulty in doing so than he should be asked to leave the job.
Recommendations
The following changes are recommended:
Amendment in dress policy: It is important to change the dress code policy for employee changing gender as they will be uncomfortable in the dress of opposite gender(Lessem and Schieffer 2016). In the present case as Ross is changing his gender so company has to change the dress code policy for him for example stating that men should wear dress jeans and women have to wear trousers or sari as per her wish. Organisation can also consider that employees can wear dress according to their full-time gender appearance(Waddell 2016).
Other Changes:According to Powers and Ellis(2014), the Company should make sure that employees who have experienced gender transition are also included in the firm’s affinity groups, local outreach efforts, interior programming and concerned training. Thus, the company should try their best to make feel comfortable in the company but if Ross is not satisfied he can leave the job. Since it is only the last option.
Making employees aware about their obligations regarding sick leave:With accordance to Castles, Ozkul and Cubas(2015), the employees who are not able of attending the job due to the illness should telephone into their department and tell their line executive by before 10.00 am on the first morning of sickness. In case the sickness is serious and will last for one week then he/she has to give medical certificate to the company about their illness. Moreover, Rudin, et.al(2016), specifies that, if the employee is not able of speaking personally on telephone than in that case he should ask his relative or wife to tell the department about it. In present case, Ross Bert not informs about his illness or being absent on the work earlier, it should be considered as unofficialnonattendance under the disciplinary process.
Further, it is to be considered as Ross Bert is desired to have his gender change due to which he has to go for regular sessions and have to take leave from the company. For the same, he can take special leave that is the company provides an opportunity to have a leave in case anyone is having personal problem by having conversation with manager.
References
Ahmed, A., Monem, R.M., Delaney, D. and Ng, C., 2017. Gender diversity in corporate boards and continuous disclosure: Evidence from Australia. Journal of Contemporary Accounting & Economics, 13(2), pp.89-107.
Castles, S., Ozkul, D. and Cubas, M. eds., 2015. Social transformation and migration: National and local experiences in South Korea, Turkey, Mexico and Australia. Springer.
Davidov, G. and Eshet, E., 2015. Intermediate approaches to unfair dismissal protection. Industrial Law Journal, 44(2), pp.167-193.
Davidson, M.J., 2016. Gender and communication at work. Routledge
Drydakis, N., 2017. Trans employees, transitioning, and job satisfaction. Journal of Vocational Behavior, 98, pp.1-16.
Elsbach, K.D., 2014. Organizational perception management. Psychology Press.
Freyens, B.P. and Gong, X., 2017. Judicial decision making under changing legal standards: The case of dismissal arbitration. Journal of Economic Behavior & Organization, 133, pp.108-126.
Howe, J., 2016. Rethinking Job Security: A Comparative Analysis of Unfair Dismissal Law in the UK, Australia and the USA. Routledge.
Howe, J., Berg, L. and Farbenblum, B., 2018. Unfair Dismissal Law and Temporary Migrant Labour in Australia. Fed. L. Rev., 46, p.19.
Jones, T., 2016. Female-to-Male (FtM) Transgender Employees in Australia. In Sexual Orientation and Transgender Issues in Organizations (pp. 101-116). Springer, Cham.
Kavanagh, M. and McRae, E., 2017. Employment law: Protecting vulnerable workers amendment to fair work act. Governance Directions, 69(4), p.241.
Lessem, R. and Schieffer, A., 2016. Transformation management: Towards the integral enterprise. Routledge.
Millington, P., 2015. Employment Law 2015. Oxford University Press, USA.
Mitchell, R., 2017. The Evolution of the Idea of a Labour Law Subject in Australian Legal Scholarship:(And What Was Regulating’Labour’or’Work’Before Labour Law as We Know it)?. Sage.
Mohamed, A. and Ali, A., 2014. Dismissal from employment and remedies (pp. 1-791). LexisNexis Malaysia Sdn Bhd.
Nicolson, P., 2015. Gender, Power and Organization: A psychological perspective on life at work. Routledge.
Painter, R. and Holmes, A., 2015. Cases and materials on employment law. Oxford University Press, USA.
Powers, B. and Ellis, A., 2014. A manager’s guide to sexual orientation in the workplace. Routledge.
Rawling, M., 2015. Regulating precarious work in Australia. Alternative LJ, 40, p.252.
Rudin, J., Yang, Y., Ruane, S., Ross, L., Farro, A. and Billing, T., 2016. Transforming attitudes about transgender employee rights. Journal of Management Education, 40(1), pp.30-46.
Steingold, F.S., 2017. The employer’s legal handbook: Manage your employees & workplace effectively. Nolo.
Supanti, D., Butcher, K. and Fredline, L., 2015. Enhancing the employer-employee relationship through corporate social responsibility (CSR) engagement. International Journal of Contemporary Hospitality Management, 27(7), pp.1479-1498.
Taylor, S. and Emir, A., 2015. Employment law: an introduction. Oxford University Press, USA.
Waddell, D., Creed, A., Cummings, T. and Worley, C., 2016. Organisational change: Development and transformation. Cengage AU.

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