Ethical and Legal Concerns in Recruitment Practices: A Case Study of XYZ Company

The company XYZ is facing potential tribunal cases from employees who were unfairly dismissed or not hired due to their smoking habit, medical condition, and other issues. Despite having some defenses available, the company may struggle to mount a strong case against these claims. The defenses that can be deployed include justifications for recruitment practices, but these may not be sufficient to counter the strength of the employees' grievances. The company is advised to improve its recruitment processes, ensure fair and unbiased evaluation of employees, avoid unauthorized deductions in wages, and adhere to the terms of employment contracts.

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Contents
Introduction.................................................................................................................................................2
The legal risks that XYZ might be taking in following the course of action outlined in this case.................2
The defenses available for XYZ to deploy if an aggrieved employee or would-be employee decides to bring a
tribunal case and the strength of the case that could be mounted.............................................................7
Advice to the senior management team when running an exercise of this kind in the future..................10
References:................................................................................................................................................12
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Introduction
The following paper aims to determine the employment practices in XYZ company where some
unlawful practices have been used by the company in recruiting the people and compensating the
employees of the company. So, the paper tries to determine the legal risks that the company takes
due to this and the defenses available to them. Also, some to the recommendations will be made
for securing the company in the future from making such mistakes.
The legal risks that XYZ might be taking in following the course of action
outlined in this case
With the retirement of Alan McSlick, XYZ decided to find his replacement internally. Thus a
notice was sent to all the employees of the company that if they consider themselves as suitable
candidates for the position, they can apply for the post of ‘Sales Director.' Four applications were
received for the position.
The legal risks that XYZ could face in the below-mentioned issues are that these issues are in
contravention of the Equality Act. This law tries to protect the people who are not treated equally in
the companies and workplaces or because of some stereotype or prejudice; they are disadvantaged.
This act protects the people from any kind of discrimination at the workplace and protects them
from discrimination against disability, age, marriage, race, sex, maternity and pregnancy, religion
and belief, gender reassignment and sexual orientation (Act, E., 2010. Equality Act 2010. The
Equality Act.). The issues in rejection as well as selection of the candidates which are as follows:
1. Julie Keene was the first candidate for this position. Including Julie, there were just two
females in the sales department of the company. Julie was recruited in the company
recently, and she was a very good candidate. But her application was rejected by the senior
managers because they thought the team which is to be managed by the ‘Sales Director'
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comprises of people that are old in age and are males and they will not like to be managed
or supervised by a female who is younger to them. Also, they rejected her because they felt
that her appointment would have a negative impact on the old male customers that makes up
the user group and they are comfortable in dealing with male employees of the company
only.
So it is evident that Julie can file a suit against XYZ that she was being discriminated on the
basis of sex and age (Dipboye, 2013). The senior management treated her in a less favorable
manner than she would have been treated and she was not even given an opportunity to
compete for this position. She was rejected straightly on the grounds that she was a younger
employee and will not be able to handle the team of senior people and since she was a
female so she won’t gel up with the male employees as well as the male customers of the
company.
In O’Reilly V BBC & Ano2 2200423/2010(ET), it was claimed by O'Reilly that the people
of her company discriminated against her due to her age and sex, and she was not given the
job. The company BBC required people that were younger in age and it was held that The
company was responsible for the discrimination in recruitment, and they discriminated
against O'Reilly (Daniels, 2012).
2. Aldo Viscida was the second candidate for this position. He was also a very good candidate
for this position. He was with the company for many years and him always on the top of the
tables for a sales commission. He won many bonuses and prizes in the company too.
Everyone in his team respected him. But his application was rejected as his writing skills
were poor, he could not write proper English. The job of Sales director required the
concerned person to write reports regularly for communicating with the clients. So, the
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senior management did not give him this chance.
So, it is evident that this candidate was not selected by the senior management because he
was incompetent to write good English. Here, the candidate can claim that he was not given
a chance to improve his skills, if he had given proper training, he would have performed
well. Also, the reports could have been prepared by some assistant if he could have dictated
the same. So he can claim that he was just not given the equal opportunity to handle the
sales team (Player, 2014).
Also, a very important point in Aldo’s case is that he belonged to Milan. So, he was being
discriminated against race indirectly. He can claim this in court and XYZ will be at risk.
3. Derek Constant was the third candidate who was as old in the company as Alan but since he
was about to get retired and his wife suffered from medical problems, the management
thought that he would concentrate on taking care of his wife rather than focusing on the role
that he will be given, and he will do his work with less energy and hard work.
Here, Derek can claim that he was being discriminated by association which means that
XYZ treated him in a less favorable manner because they associated him with a protected
characteristic due to the illness of his wife. This is also a part of the Equality Act, and this
act protects the person who is being discriminated by association. This is again a risk to the
company XYZ.
In Coleman v Attridge, the claimant was competent to perform the job, but she was being
discriminated in the company as her son suffered from a disability and thus it was thought
that she wouldn't be able to perform the job. The court held that she was eligible to get
compensation from the company and the judgment were in favor of the claimant (Dipboye,
2013).
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4. The fourth was Mike Replica who was a professional person and was being considered as
suitable for the position of a senior manager. Though he had innovative ideas to develop the
team, but still he was selected for this position because he was married to the niece of
Director of Finance and used to play golf with the Chief Executive of the company. The
senior management stated that they are not selecting him for this reason, but they are
choosing him because he had good ideas and he had the capability to take the sales team
forward.
Though the candidate cannot pose any threat or risk to the company but the appointment of
this candidate happened in an unfair manner (Okechukwu, 2014). The other employees and
the competitors for this position can claim this, and they can pose a threat to the company
on the grounds of discrimination and inequitable behavior. Also, ideas that he has given
pose risk to the company as:
a. He gave the idea that the arrangements for the payments of the employees should be
changed, and the payments should entirely be based on the system of commissions. This
was not told to the people working in the company when they joined the company, and
also, this was not a part of the contract the company entered into with the employees.
So, the employees can claim that this was a breach of contract from the company's end,
and the company can be at risk to pay the damages to the employees if they ask for it.
The fact that the entire earning of the employees depended on meeting the sales target
was in contravention of the ‘national minimum wage act’ (Dispenza, 2012). If the
employee does not meet the target, the will be given no wages, and this is against the
minimum wage principle which requires every company to pay a minimum wage to its
employees which are set by the government and it is mandatory for the companies to
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pay that. The deductions that he has decided to make are also unlawful, these are not
allowed or covered under the payment of wages act. There are some authorized
deductions that the employer can make the salary or wages of employees and the
deductions decided by Mike are not covered in this. So, this is also a major risk to the
company.
b. He also decided that the members of the team who perform very poor should be
dismissed from the company. So, the employees can claim that if they have performed
well throughout and just one or the recent performance is poor due to some reason that
their dismissal is not fair from the company's side, and they can sue the company on the
grounds of unfair dismissal. So, the company can face the risk of dismissing its
employees in an unfair manner and not considering their reasons of poor performance
which may be sickness, illness, or any other personal or professional issue (Masupe,
2012).
c. A policy was introduced that required the employees of the company to undergo
medical checks regularly. But there is a risk to XYZ in this also as making them
undergoing medical test may not be ethical. The employees can claim that the company
is finding reasons to fire them like if they have the habit of smoking and the medical is
negative due to this, then the company may dismiss them on the grounds of poor
performance due to bad health. But in real, the performance was good and was not
questioned till the company did not know about their smoking habit.
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The defenses available for XYZ to deploy if an aggrieved employee or
would-be employee decides to bring a tribunal case and the strength of
the case that could be mounted
The company XYZ does not have much to defend themselves because the case and the
grievances of the employees are stronger than the defenses for the company. The company can
only give justifications in the case of recruitment practices that it followed. The following
justifications can be given by the company:
1. Julie Keene was rejected for this position because she did not have adequate experience
to handle this position. She was too young to handle such senior position in the company.
So, the company thought about developing her skills further as she had the potential to
grow and then the company thought of considering her to handle the position of ‘Sales
Director' in future. Basically, the company wanted to develop the skills of its employees
and prepare her for the future challenges. The company can thus say that it did not
discriminate against her on the basis of sex or age but due to lack of required experience.
2. The company rejected Aldo Viscida because he lacked the basic requirement or skill for
doing this job. He was poor in writing English, and this was a necessary thing in this job.
Since the company had to find a suitable candidate soon to replace the retiring director,
so it did not have the time to train Aldo Viscida. Therefore his application got rejected
and not because he was from some other origin.
3. Derek Constant was rejected by the company because the sales team was very
comfortable in working with him and they could talk to him openly. If he was promoted
to director, he might not be able to communicate with them very often, and the morale of
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the employees would have declined. But the case of Derek Constant is very strong
against the company because he was very deserving and had all the required
qualifications as well as experience for this position. Therefore, this justification of the
company may not work in this case.
4. Then talking about Mike Replica, the company hired him because he was a professional
person and he had innovative ideas to develop the team.
With the changes that Mike Replica introduced in the company, it does not have enough defenses
for that as all the changes that he introduced were unlawful.
1. The new payment system was commission based, and the entire earnings of the
employees of the company were at risk. The minimum wage act requires every company
to pay a minimum wage to its employees which are set by the government, and it is
mandatory for the companies to pay that. The deductions that he has decided to make are
also unlawful; these are not allowed or covered under the payment of wages act. There
are some authorized deductions that the employer can make the salary or wages of
employees and the deductions decided by Mike are not covered in this (Barnard, 2012).
2. The poor performing members could be dismissed from the company. This is a breach of
contract between XYZ and its employees as this was not a term of contact when the
employees were employed by the company that the company will dismiss them if they
are performing poorly. So, the company will not be able to do anything instead of paying
the damages to the employees if they sue them (Barnard, 2012).
3. The sales team members had to undergo medical checks regularly. This is also against the
employment practices as the employers cannot force the people to go for medical tests
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every time. This is a breach of privacy, and this is not allowed in the employment law
(Holland, 2015).
Thus there are very few defenses that are available with XYZ to protect itself if any aggrieved
employee or a would-be employee decides to bring a tribunal case, and the strength of the case
that could be mounted would be very strong against the company XYZ.
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Advice to the senior management team when running an exercise of this
kind in the future
The senior management is advised to do the following in the future:
1. The company is advised to list down the job responsibilities and specifications in advance
when they go for recruitment, no matter if it is done internally also so that only the
eligible and qualified candidates apply for the job. Even if the company does not hire
anyone based on the eligibility criteria, then the company will have a reason to reject that
applicant. It will save itself from any legal proceedings in the future. The company
should also specify the procedure for selection so that all the potential candidates get a
chance to prepare for it, and they don't feel that they were at some kind of disadvantage.
2. The senior management should carry out the recruitment activity in a fair and justifiable
manner. They should measure every employee on the same grounds like they can take the
test, or interview them and should give equal chance to everyone to show their potential
and strengths. The grounds of evaluation of the employees should also be same, and there
should not be any bias when the evaluation takes place. The employees should not be
discriminated on the grounds of age, sex, association, etc. as these discriminations are
prohibited in the employment law.
3. It is advised that the management should take care that no unauthorized deductions are
made in the payment of wages or salaries of employees, and they should be paid as per
the law. Only the authorized deductions that are mentioned in the law (Payment of wages
Act) can be made by the company. The decision of the company to keep the 100%
earnings of the employees at risk was not correct as they cannot deduct the entire amount
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of salary even if the performance of the people is poor. Poor performance does not
always mean that the employee did not want to perform, it may be due to his personal or
professional issues, or he may not be able to understand the work or any other valid
reason. So, the company is advised to look into the matter of employees and resolve their
issues either by making them understand the tasks or by providing them the necessary
training.
4. The company is also advised not to breach the terms of the contract as this is the
necessity of the contract of employment that whatever terms and conditions regarding the
payment of salaries and wages are decided during the contract formation must be adhered
to and if the company want to change something in that, then they can do it but by taking
the consent of the employees. The employees have many remedies if the company
breaches the term of employment contract and then the company may have to pay the
employees more compensation, so it is better that the terms are adhered to and changed as
per the rules and law only. But in this case, the management did not consult anybody and
changed the policies regarding the payments.
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References:
Act, E., 2010. Equality Act 2010. The Equality Act.
Barnard, C., 2012. EU employment law. Oxford University Press.
Daniels, K., 2012. Equality Act 2010.
Dipboye, R.L. and Colella, A. eds., 2013. Discrimination at work: The psychological and
organizational bases. Psychology Press.
Dispenza, F., Watson, L.B., Chung, Y.B. and Brack, G., 2012. Experience of Career‐Related
Discrimination for Female‐to‐Male Transgender Persons: A Qualitative Study. The Career
Development Quarterly, 60(1), pp.65-81.
Holland, J., Burnett, S. and Millington, P., 2015. Employment Law 2016. Oxford University
Press.
Masupe, T. and Parker, G., 2013. Equality Act 2010: Knowledge, perceptions and practices of
occupational physicians. Occupational medicine, 63(3), pp.224-226.
Okechukwu, C.A., Souza, K., Davis, K.D. and de Castro, A.B., 2014. Discrimination,
harassment, abuse, and bullying in the workplace: Contribution of workplace injustice to
occupational health disparities.American journal of industrial medicine, 57(5), pp.573-586.
Player, M., 2013. Federal Law of Employment Discrimination in a Nutshell, 7th. West
Academic.
Young, H., 2010. Equality Act 2010.
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