|Type of paper:||Course work|
|Categories:||Business Business law|
A corporation intending to function in a particular environment is expected to adhere to the current employment laws to avoid legal battles that can be detrimental to its reputation and pursuit of its organizational goals. This task will utilize the Case Study 'Trouble at the Milldam Brewery' to highlight various legal implications emanating from the violation of employment laws.
Advise MB of their Potential Liability to Olaf in Unfair Dismissal
Just like it is the case with wrongful dismissal, unfair dismissal involves a scenario where the employment contract of an employee is terminated contrary to the requirements of the Employee Rights Act 1996 (ERA 1996). In the 'Trouble at the Milldam Brewery' case study, it is alleged that Olaf, who was the head brewer, was unfairly dismissed by Preeti. The appointment of Preeti as the new line manager for Milldam Brewery (MB) to steer the company's expansion programs resulted in conflicts with some of the employees, especially Olaf. The continued personality clashes and arguments between Olaf and Preeti deteriorated their working relationships leading to the dismissal of Olaf. However, the termination of Olaf's employment contract with MB is considered to be unlawful thus falling under the category of unfair dismissal. The MB should brace itself for possible legal ramifications resulting from Olaf's unfair dismissal from the company.
The flawed procedure of dismissing Olaf is a potential liability to the company. ERA 1996 requires that the disciplinary measures on an employee should be fair and consistent. Regardless of Olaf's gross misconduct of swearing and calling Preeti "was an idiot who doesn't know anything about beer," her decisions after that did not adhere to the required disciplinary procedure. Instead of giving Olaf a written warning following his actions, Preeti orally threatened him of impending sacking unless he apologized. According to the staff handbook at the MB, the disciplinary action is supposed to be undertaken in accordance with practices and procedures found in the ACAS Code of Practice on Disciplinary and Grievance Procedures. The company's inability to adhere to the statutory of ACAS Code of Practice on Disciplinary and Grievance Procedures is another potential liability following Olaf's unfair dismissal. MB was supposed to carry out a proper investigation over Preeti's allegations that Olaf's actions in the last three months were "argumentative and insubordinate." The company's failings to adhere to the proper disciplinary procedures increases the risks of being held legally responsible for its dealings with Olaf's unfair dismissal case.
Failure to allow Olaf a chance to appeal against his dismissal is another potential liability that can result from Olaf's unfair dismissal. Olaf can pursue ACAS grievance letter, which gives him a right to bring a claim before the employment tribunal. Since the grievance is about Preeti, who is the line manager, Olaf is likely to approach another senior manager to facilitate the tabling of his claims. Allowing Preeti to lead the meeting that resulted in the sacking of Olaf was against the ACAS Code, which stipulates that the whole disciplinary process should not be left to one person (the accused). There was also no appeal stage. After the completion of the meeting, Preeti stated that Olaf was being sacked effective immediately for gross misconduct, with no provision for investigation or Olaf's appeal against her ruling. The dismissal of Olaf was solely based on Preeti's allegations indicating that the evidence was insufficient. Such practices increase the risks of MB being legally held responsible for Olaf's unfair dismissal.
Reinstatement is one of the MB's potential liability to Olaf after following his unfair dismissal. As part of the potential liability for unfair dismissal, the employment tribunal is likely to place Olaf in his job, consequently paying him a stipulated compensatory fee due to the loss of wages accumulated during the time Olaf was out of the job. The MB should adhere to UK labour law which requires the employer to be fair, just and reasonable when it comes to treating employees in the event that leads to breaching of a given employment contract. This has been stipulated by ERA 1996 which asserts that workers are entitled to fair and just reasoning before being dismissed on the basis of their conduct and a given substantial reason. If Olaf chooses to pursue reinstatement as a remedy to his unfair dismissal, he will be required to return to his original job, under the previous conditions (head brewer at MB).
Employee re-engagement is another potential liability that can be linked to the unfair dismissal of Olaf. According to the stipulation of unfair dismissal under the ERA 1996, MB should strategize on how to deal with the possibility of being required to re-engage Olaf. This will involve engaging Olaf in a different job or other preferred employment within the same company. It is revealed that Preeti did not follow a fair and required procedure before termination of Olaf's employment contract. Olaf had worked for MB for 15 years, indicating that he is entitled to a claim for unfair dismissal.
As an employer, MB is advised to have a disciplinary procedure which can fit various scenarios such as the incidents involving the dismissal of Olaf. Instead of a written notice regarding his gross misconduct, Olaf is orally informed that he must attend a disciplinary meeting to discuss his behaviour. This indicates that Preeti did not follow the required protocol before dismissing Olaf. However, MB should note that there are minimal chances that the Olaf will successfully pursue reinstatement and re-engagement claims. This can be attributed to the tribunal's reluctance in forcing MB to take Olaf back. The tribunals will consider both choices as potential liability of Olaf's unfair dismissal. However, it should be acknowledged that the working relationship between Olaf and MB has deteriorated. This highlights the significance of seeking other alternative options that are in best interests of the parties involved. Whereas reinstatement and re-engagement are rare, it is imperative for MB to be prepared in the event where it is implemented.
Compensatory award is also a potential liability that a claimant is entitled after unfair dismissal. Olaf had worked for MB for 25 years, attesting that he is entitled to a claim for unfair dismissal. The company should acknowledge that there is a possibility of the employment tribunal to refer to the various remedies of unfair dismissal which includes reinstatement, re-engagement, basic award and the compensatory award. The company will be liable for Olaf's compensatory award as a way of compensating his losses of income, employee benefits, and the likely loss Olaf will suffer in future. Olaf can also seek the compensation of harm to reputation and dignity after being subjected to unfair dismissal by Preeti. MB should note that the current compensatory award is PS80,451, as per the ACAS Code of Practice on Disciplinary and Grievance Procedures. MB will also be legally accountable in complying with basic award payments to Olaf. This will involve multiplying Olaf's weekly pay amount up to a maximum limit of PS489 by the number of years of service (15 years).
Advising MB on Possible Claims under Equality Act 2010
Equality Act 2010 protects employees against any form of discrimination at their place of work. The implementation of this law is to ensure employers provide equality of opportunities as well as protecting the dignity of the workers. It follows that MB is expected to comply with the stipulations of Equality Act 2010 to facilitate the correction of disadvantages by offering affirmative actions that can help reduce barriers to some excluded groups in the workplace. According to section 39, it is emphasized that the purpose of this law is concerned with discrimination in employment thus providing a necessary framework that protects everyone in a given working environment. This indicates that the onus is on MB (the employer) to defend a discrimination claim that can be raised by an employee. The recent undertakings at MB regarding Preeti, Dave and Steve's situations attests that indeed there are possible claims that are likely to be made against the company under Equality Act 2010.
Sexual harassment and intimidation are one of the possible discrimination claims Preeti can raise against MB. Section 9 of Equality Act 2010 identifies sex and sexual orientation as part of nine protected characteristics. Section 26 defines harassment as unwanted conduct related to one of the protected characteristics which violate the dignity of the worker. Typically, harassment results in the creation of a hostile working environment and intimidating atmosphere, ultimately leading to the demeaning and unacceptable working environments that are socially and psychologically unfit for a particular group of employees. The events in this case study indicate that Preeti is facing sexual harassment, which has led to toxic and hostile working conditions that have hampered the execution of her duties as a line manager at MB. On another occasion, Preeti discovers the words, "Get the bitch out!" written in chalk on the brewery wall near her car. These insults and the company's reluctance to remedy the situation is an indication that Preeti was being intimidated on the basis of her sexuality.
Racial discrimination is another claim that Preeti, Steve, and Dave can raise against MB. Section 4 of Equality Act 2010 identifies race as one of the protected characteristics at the workplace. Preeti is racially abused due to her South East Asian heritage. One day she overhears the men making racist jokes about her ethnic background and the color of her skin. This situation indicates Preeti was subjected to direct discrimination since she was being treated worse than other workers at MB because of racial and ethnic background. MB should note that its liability is not limited to its actions but rather encompasses all circumstances that require the company to protect its employees against any form of racial discrimination. The Equality Act 2010 outlaws direct discrimination, harassment, victimization and indirect discrimination which are the practices that have been witnessed at MB.
The racial discrimination ordeal that Preeti underwent, culminated with the company's unwillingness to resolve this issue suggests that discrimination claims are likely to be raised against MB. The recruiting process of Dave and Steve was also flawed by aspects of racial discrimination. Irrespective of their skills and experience in brewery industry, Steve and Dave are denied a chance to work at MB because of their race. Preeti opted to hire James because he was an African American. She also revealed that she was fed up of working in an organization where the dominant race is White. According to section 13 of Equality Act 2010, it is prohibited for an individual to be treated less favorably because of their protected characteristic (race). Denying to hire Dave and Steve because of their race amounts to discrimination of association.
If an employment tribunal discovers that the Equality Act 2010 was breached through the company's dealing with Preeti, Steve and Dave cases, then the primary remedy that will be awarded is compensation. The compensation can include financial and loss of earnings, harm caused to the feelings of the victims and aggravated or exemplary damages. As opposed to unfair dismissal, compensation remedy under discrimination claims do not have a limit or a capping. Tribunal recommendation is also another remedy for discrimination claims. The employment tribunals are entitled to make recommendations that can counter adverse effects on the claimant.
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