Learning outcomes

Labor law of United Kingdom regulates the relationships between employees, employers, and trade unions. Those people who are working get various benefits in the form of employment rights. These rights are recognized in different Acts, Regulations, common law and equity. There are three main sources of employment law in UK and these sources are common law, statute and European law (Leexology, n.d.).

This report is divided into four sections and all the sections address different topics. Following are the learning outcomes of this report:

Report demonstrates relations between the changes occurred in the organizations and the employees, and it also state social and economic background.

It addresses different issues related to the employment law and methods through which employers can deal with these issues.

Role played by the employment law which also includes European law in the employment relations.

Lastly, paper is concluded with brief conclusion.

1.This section list down the legal issues related to the Newcastle office:

First issue deals with the dismissal of the employee on the basis of gross misconduct. Gross misconduct includes various things such as theft, physical violence, gross negligence or serious insubordination. Employer can immediately dismiss the employee on the basis of gross misconduct, but employer must follow fair procedure. Employer must conduct investigation for the incident and also give chance to the employee to respond, before take decision to dismiss the employee. As stated by section 95 of the employment Rights Act 1996, employer has right to terminate the employee without giving notice to the employee, but this possible in those situations only in which he is entitled to terminate the employee without giving notice such as by reason of his conduct (employment Rights Act, 1996). 

In the present case, Colin Tate is dismissed by the employer for making such comments on Facebook which cause damage to the reputation of the care home. This conduct of Colin falls under the category of gross misconduct. This can be understood through case law, Kelly v Interserve Industrial Services Ltd.

It is not lawful for employer to discriminate directly or indirectly against any worker or job applicant on the basis of religion or belief. Discrimination related to the religious beliefs arises when someone is disadvantaged on the basis of their religion and beliefs. Section 13 of the Equality Act 2010 states the provision which make it completely unlawful to discriminate against any employee religious or philosophical beliefs (Equality Act, 2010). Section 10 of the Equality Act 2010 defines the meaning of religious belief (Equality Act, 2010).

Dismissal of the employee on the basis of gross misconduct

In the present case, Julie is dismissed by her employer for wearing religious necklace at workplace. She is forced to remove the necklace or leave the job. Julie has right to take action against the care home on the ground of discrimination on the basis of religion and religious beliefs. In this case, main issue is whether dismissal of Julie is unfair or not?

Dismissal of the employee is considered as unfair dismissal if employer fails to provide good and fair reason for dismissing the employee. Dismissal is also considered as unfair dismissal if employer fails to follow the formal disciplinary or dismissal process. For the purpose of determining whether dismissal is fair or unfair Court conducts Range of Reasonable Responses test. As per this test dismissal is considered as fair dismissal if such decision is based on the reason which can be considered as fair. In other words, dismissal is fair if it is not based on any such reason on which no reasonable employer will dismiss its employee. This can be understood through case law, The British Waterways Board v Smith. In the present case Ali  Khan is dismissed by the employer because he provide genuine and true advice related to the health risk of the residents of care home and others (Employment case update, 2015). Reason on the basis of which Ali is dismissed is not fair, because no reasonable employer would dismiss its employee for giving true and helpful advice (Brodtkorb, 2010).

2.This section provides the relative strengths for each case:

This case deals with the issue whether it is fair on part of the employer to dismiss the employee who made such comments on social media which affects the reputation of the company. This can be understood through case law The British Waterways Board v Smith ( Practical law, 2015). In this case, EAT held that employer follow the reasonable investigation before dismissing the employee, and employer lost confidence in the employee. Therefore, dismissal by employer was not unfair. In this case, EAT follow the guidance stated by Lord Justice Mummery in London Ambulance Service NHS Trust v Small [2009] IRLR 563, CA (Old Square chambers, 2009).

In the present case, Carling UK ltd can state that reason behind dismissal is fair because comments made by Colin Tate damage the reputation of the organization. They further state that company follows the proper procedure for dismissing the employee.

There is one more defense which can be used by the employer, and that is fair reason. Employer dismisses the Colin on the basis of fair reason and any reasonable employer dismisses the employee if employee demines reputation of the organization.

Discrimination related to religious beliefs

Direct discrimination happens when employees are treated less favorably as compared to others because they hold or do not hold any religious any specific or philosophical belief. Employees of the organization are also protected from direct discrimination occurred because of religious or philosophical belief (ACAS, 2018).

In the present case, Julie Tate is a co-worker and takes care of the needs of the residents, as she helped the residents in their daily activities and also takes care about their personal hygiene. Employer instructed to Julie that she had to remove her necklace because of the health & safety issues of residents. It must be noted that these instructions are given in each and every care home. In this there is no discrimination on the basis of religion belief, because not only Julie but other employees of the organization also receive same instructions. This can be understood through case law London Borough of Islington v Ladele. In this case, Court stated that claimant does not face any direct discrimination on the basis of religion or religious belief. Therefore, Carling UK Ltd can use the defense that Julie is not the only one who receives such instruction, and these instructions are given after considering the health & safety of the residents (McClean, 2009).

3.Even though employer think that they dismiss the employee in fair manner, then also employee has right to file claim against the employer on the ground of unfair dismissal. Some of the reasons are stated below:

• Reason given by the employer for the dismissal was not real and true.
• Reason given by employer was not fair.
• Employer acted unreasonably.

The final issue relates to an ex-employee at the Care home. Ali Khan, who had worked in the maintenance team and after nine months of service his employment, was terminated. Ali was terminated for giving true advice related to the health risk of the residents, and this cannot be considered as fair reason to terminate the employee (ACAS, 2018). However, employer follows proper procedure before dismissing the employee and made payment of all the dues. Caring UK Ltd had trust issues with the Ali and he also misconducted with his employer. Caring UK ltd can further state that they conduct proper investigation before dismissing the employee. In this principal reason of the dismissal was the conduct of the employee. This can be understood through case law, British Home Stores v Burchell [1978] IRLR 279 (Arnold, 2018). In this case Court consider whether proper investigation was conducted or not before dismissing the employee. 

3.Fairness at workplace is considered as most important factor of successful business. Equality is supported and empowered by the Equality Act 2010. Equality also ensures good sense of business while running and developing an organization. The main purpose of this Act is to develop equal job opportunities and fair working conditions for existing employees. It imposes obligations on employer to develop such policies at workplace which prevent discrimination.

Unfair dismissal

Section 13of the Equality Act 2010 states, it is completely unlawful to discriminate against people at work on the basis of protected characteristics (Equality Act, 2010). Section 4of the Equality Act 2010 provides protection characteristics, and these characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy, race, religion or belief, sex, and sexual orientation (Equality Act, 2010).

Following are some key concepts which must be incorporated by the employer for ensuring equality and fairness at the workplace:

• Employer must give knowledge about the above stated protected characteristics to the employee, so that if employee believes that they are discriminated then they can check this from the above stated protected characteristics.
• Employer must create such environment in which employee feel confident in raising the matter against discrimination.
• Employer must ensure proper procedure of compliant and investigation related to discrimination occurred at workplace.
• Employer must understand the provisions of Equality Act 2010, and also applied these provisions at the workplace. Equality Act 2010 also provide some exemptions and exceptions in which treating less favorably to any particular employee is not considered as unlawful.
• There must be such policies in which both employers and employees can be held liable for their actions which result in discrimination.
• For the purpose of ensuring compliance with the law and for encouraging the equality, employer must frame strict policy and this policy must convey expected actions from both employer and employee.
• Employment law in UK provides different options for resolving issues which include policy changes, disciplinary procedures, and mediation. Employer must adopt one method for handling and resolving the complaints related to discrimination (ACAS, 2018).

These facts provide clarity to the employer in context of handling and resolving discrimination issues occurred at workplace. If employee lodges any complaint, then employer must investigate the matter as per the prescribed provisions:

• Investigation conducted by the employer must be related to the fact and conduct for the purpose of collecting all necessary information.
• Investigator must be clearly guided by the top management on what exactly they are required to investigate.
• Person who is conducting the investigation must not be involved in the issue being investigated.
• Proper guidance must be provided to the investigator in context of investigation procedure (ACAS, 2018).

Investigation conducted by organization in any matter is considered as most important step, because if employee is terminated without conducting proper investigation then such dismissal is considered as unfair dismissal. This can be understood through case law Redfearn v Serco Ltd [2012] ECHR 1878 (Garlicki, 2017). 

In other words, Dismissal of the employee is considered as unfair dismissal if employer fails to provide good and fair reason for dismissing the employee. Dismissal is also considered as unfair dismissal if employer fails to follow the formal disciplinary or dismissal process

4.Transfer of business is covered and by the regulated by The Transfer of Undertakings (Protection of Employment) Regulations 2006. Provisions of TUPE-2006 must be considered by the Carlings UK Ltd before transferring the business. As per the regulations of the TUPE-2006, when business is transferred from one owner to another owner then following provisions are considered (GOV.UK, n.d.):

• New employer is obliged to continue the employment contract of all the employees of the organization who were working in the organization. It also includes those employees who were employed in the organization if they were not unfairly dismissed.
• New employer is also obliged to continue all the rights and obligations arising from the previous employment contracts of the employees, except criminal liabilities and also rights and obligations related to benefits for old age, invalidity or survivors in employees’ occupational pension schemes.
• New employer takes over all the collective agreements which are made on behalf of the employees and still in force before the transfer.
• It is not possible for previous employer or new employer to dismiss the employee on the ground of transfer and any reason connected to transfer. However, employer can dismiss the employee fairly on the ground of economic, technical or organizational reason related to the changes occurred in the workforce. If no such reason is present then dismissal is considered as unfair dismissal.
• It is not possible for new employer to worsen the terms of the employment contract of the transferred employee.
• Previous and new employers must provide information to the representatives of the employees.

Employees working in the organization immediately before the transfer or those who are dismissed unfairly for the reason related to the transfer automatically become the employee of the new employer, either hey inform to the new or previous employer that they have objection to being transferred. This can be understood with the help of case law, Hunt v Storm Communications Limited, Wild Card Public Relations Limited and Brown Brothers Wines (Europe) Limited (Case No 2702546/2006, March 27, 2007) (McMullen, 2010).

It must be noted that new employer is under obligation to provide new statement of terms and conditions related to employment within the period of four weeks of transfer. An employee’s period related to continuous employment cannot be broken by a transfer, and for determining the period of continuous employment and entitlement to statutory employment rights entitlement to statutory employment rights, date on which period of continuous employment is initiated with the previous employer is considered. Rights related to occupation pension earned till the date of transfer are protected by social security legislation and pension trust arrangements. 

Importance of fairness and equality at workplace

Rights related to redundancy- employee who is dismissed in context of redundancy have different rights. Employer is under obligation to ensure that employees get necessary period of consultation with their representatives. Entitlement related to redundancy payment must not be affected by the failure of any claim which an employee may make for unfair dismissal compensation (CIPD, n.d.).

Conclusion:

After considering the above facts, it can be said that Employment law in the UK ensures protection of the employees at the workplace. This report discuss various issues related faced by the employer in context of employment law such as issue related to unfair dismissal, obligations of employer and rights of employee in context of TUPE regulations, discrimination faced by the employer such as dismissal because of religious belief, etc. This report discuss provisions of different Acts such as Equality Act 2010, Employment rights Act, etc.

On the basis of above stated provisions, it is clear that employment law provide various rights to the employees and safeguard their interest.

Following are the recommendations for the Caring UK Ltd:

• Organization must prepare charter which includes all the necessary provisions of the employment law.
• For ensuring compliance with the employment law, organization must appoint person which have adequate knowledge related to the employment law (Caldwell, 2013). 

References:

ACAS, (2018). Carrying out investigations in the workplace. Available at: https://www.acas.org.uk/index.aspx?articleid=5507. Accessed on 8^th March 2018.

ACAS, (2018).. Discipline and grievance – Acas Code of Practice. Available at: https://www.acas.org.uk/index.aspx?articleid=2174. Accessed on 8^th March 2018.

ACAS, (2018).. Fair and unfair dismissals. Available at: https://www.acas.org.uk/index.aspx?articleid=4098. Accessed on 8^th March 2018.

ACAS, (2018).. Religion or belief and the workplace. Available at: https://www.acas.org.uk/media/pdf/d/n/Religion-or-Belief-and-the_workplace-guide.pdf. Accessed on 8^th March 2018.

Arnold, J. (2018). British Home Stores v Burchell [1978] IRLR 279. Available at: https://swarb.co.uk/british-home-stores-ltd-v-burchell-eat-1978/. Accessed on 8^th March 2018.

British Home Stores v Burchell [1978] IRLR 279.

Brodtkorb, T. (2010). “Employee misconduct and UK unfair dismissal law: Does the range of reasonable responses test require reform?”, International Journal of Law and Management, Vol. 52 Issue: 6, pp.429-450.

Caldwell, A. (2013). Employment Law in the United Kingdom. Available at: https://www.lexisnexis.com/legalnewsroom/labor-employment/b/labor-employment-top-blogs/archive/2013/04/09/employment-law-in-the-united-kingdom.aspx.

CIPD. Disability discrimination. Available at: https://www.cipd.co.uk/knowledge/fundamentals/emp-law/disability-discrimination. Accessed on 8^th March 2018.

Employment case update. The British Waterways Board, Trading as Scottish Canals v Smith UKEATS/0004/15/SM. Available at: https://www.employmentcasesupdate.co.uk/site.aspx?i=ed27075. Accessed on 8^th March 2018.

Employment Rights Act 1996- Section 95.

Equality Act 2010- Section 13.

Equality Act 2010- Section 4.

Garlicki, L. (2017). Redfearn V The United Kingdom: Echr 6 Nov 2012. Available at: https://swarb.co.uk/redfearn-v-the-united-kingdom-echr-6-nov-2012/. Accessed on 8^th March 2018.

GOV. UK. Employment Rights On The Transfer Of An Undertaking. Available At: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/275252/bis-14-502-employment-rights-on-the-transfer-of-an-undertaking.pdf. Accessed on 8^th March 2018.

Gov. UK. Overview. Available at: https://www.gov.uk/dismissal. Accessed on 8^th March 2018.

Hunt v Storm Communications Limited, Wild Card Public Relations Limited and Brown Brothers Wines (Europe) Limited (Case No 2702546/2006, March 27, 2007)

Lexology. Employment & labour law in the UK. Available at: https://www.lexology.com/library/detail.aspx?g=ccd13a56-2017-40e2-b5e6-66a041db20e8. Accessed on 8^th March 2018

London Ambulance Service NHS Trust v Small [2009] IRLR 563, CA

London Borough of Islington v Ladele [2009] EWCA Civ 1357.

McClean, D. (2009). Religion and Discrimination in the United Kingdom. Available at: https://www.law.cf.ac.uk/clr/research/Oxford%20–%20United%20Kingdom.pdf. Accessed on 8^th March 2018.

McMullen, J. (2010). Case law relating to service provision changes under the Transfer of Undertakings (Protection of Employment) (TUPE) Regulations 2006. Available at: https://sas-space.sas.ac.uk/2900/1/Amicus84_McMullen.pdf. Accessed on 8^th March 2018.

Old Square chambers, (2009). London Ambulance Service Nhs Trust V. Small. Available at: https://www.oldsquare.co.uk/news-and-media/cases/london-ambulance-service-nhs-trust-v.-small. Accessed on 8^th March 2018.

Redfearn v Serco Ltd [2012] ECHR 1878.

Rusell, T. A guide to UK employment law. Available at: https://www.tim-russell.co.uk/upimages/employment%20guide.pdf. Accessed on 8^th March 2018.

The British Waterways Board (t/a Scottish Canals) v Smith (Unfair Dismissal : Reasonableness of dismissal) [2015] UKEAT 0004_15_0308 (03 August 2015)

Practical law, (2015). The British Waterways Board (t/a Scottish Canals) v Smith (Unfair Dismissal : Reasonableness of dismissal) [2015] UKEAT 0004_15_0308 (03 August 2015). Available at: https://uk.practicallaw.thomsonreuters.com/D-033-9162?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1. Accessed on 8^thMarch 2018