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Legal Risks and Defenses in Employment Law Assessment for Desklib
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Added on 2019-09-30
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This article discusses the legal risks and defenses in an employment law assessment for Desklib. It covers the Equality Act 2010, discrimination by association, and occupational requirements. It also provides advice for senior management teams on how to run a fair recruitment exercise in the future.
Legal Risks and Defenses in Employment Law Assessment for Desklib
Added on 2019-09-30
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Employment Law Assessment 1.What legal risks might XYZ be taking in following the course of action outlined in this case? XYZ has decided to hire Mike Replica. They decided not to hire the other three candidates whichinvolves certain risks under the Equality Act 2010. Equality Law aims to protect certain groups of people who might be treated unequally or disadvantaged due to prejudice or stereotyping related to some of their characteristics. The Equality Act 2010 makes sure that people are not been discriminated against any more with this legislation and protects certain groups such as:AgeDisabilityGender reassignmentMarriage and civil partnershipPregnancy and maternityRaceReligion and beliefSexSexual orientationEach of the three people they will be turning down for the Sales Director position can be said that they are part of these groups mentioned above. More specifically Julie Keene is one of the only two women employed in the Sales Team. She is also much younger than the other people in the team. Therefore the risk in Julie’s case is that she might say that she was discriminated against on the bases of direct age and direct sex discrimination to an employment tribunal. Meaning that Julie was treated less favourably than Mike Replica because of her age and gender. As seen in cases like O’Reilly V BBC & Ano2 2200423/2010(ET), O’Reilly claimed that she was discriminated against because of her age and sex and she was left without a job. On the bases ofneeding younger people for the show BBC could not proven otherwise and the ET decided that it was an act of age discrimination.Furthermore the case of Perrin Vs Fred Christophers Ltd ( 13th of February 2016) where Ms Perrin brought claims against her boss for unfair dismissal, direct age and sex discrimination, harassment on the grounds of age and sex and failure to provide terms and conditions of employment she won the case. On the bases of age and sex discrimination FC and Jon Christophers were not able to prove that she was under performing and tried to replace her with a younger person. In cases such as sex and age discrimination the penalties can be up to an average award of for sex discrimination £19,499 to a maximum of £442,366 and for age discrimination can me an average of £10,931 to a maximum of 48,710. In Aldo’s Viscida case he can claim that he was discriminated against his national origin- indirect race discrimination. The Equality Act protects employees from discrimination, harassment and
victimization because of the protected characteristic of Race, which may include different elements that often merge: race, colour, ethnic origin and national origin. The equality Act protects such employees that their national origin –birthplace, the geographicalarea and its history can be key factors that might not be treated fairly compared to another person in the workplace. The reason that Aldo was not chosen was his poor written English ability which this needs to be specifically mentioned. Aldo might claim £18,584 to a maximum of £374,933.Derek Constant has been working in the company for a long time and he is considered as sort of a deputy already. Now Derek can claim age discrimination and discrimination by association.‘Discrimination by association occurs when a person is treated less favorably because they are linked or associated with a protected characteristic. The person does not have the protected characteristic but they are treated less favorably than others because of a protected characteristic of a friend, spouse, partner, parent or another person with whom they are associated.’ As stated in the Equality Act 2010.In the case of Coleman v Attridge Law the claimant, even though she was not disable in any way,was decided to be directly discriminated against and harassed because her son had a disability.More cases followed like Truman v Bibi Distribution Ltd where he was dismissed because ‘his heard was not in the business’ after his daughter suffered with cystic fibrosis. The Employment Tribunal decided in favor of Mr. Truman and concluded that his dismissal constituted disability discrimination by association, since Bibi had not enough evidence to support otherwise. This is one of the riskiest cases that XYZ has to be able to support in taking this course of action compared to the other two cases of Julie and Aldo.By hiring Mike Replica the company should be aware of the risks that the Mike’s new ideas entail. His first idea of changing the payment arrangements to wholly commission based is a huge change for the people that are working there for some time can be something that is not part of what they have agreed on when they were hired. By dismissing the poorest performing members of the team that can cause a lot of grievances and unfair dismissal due to the fact that their overall performance should be taken into account not just their value of new sales. They might not be able to achieve their target because of political events, due to sickness and many more circumstances. This will definitely not boost their energy levels but can be considered as extreme measures and people will be intimated andpressured into achieving more sales no matter what the consequences can be. His third goal of having everyone undergo regular medicals even though might sound in the bestinterest of the employees there are a few risks involved. People might feel that the company is pressuring them into doing something they do not want to do and it’s personal. They also might feel that their lack of achieving their goals (achieving desirable weight/quitting smoking)might put them under more pressure that can end up causing them more health problems due to the excessive pressure at work and the microscope their ‘personal life’ is under.
In general XYZ is taking procedure of appointing someone in Alan’s position very lightly with not sufficient evidence to support their decision and they did not give everyone the chance to explain their vision or plan for the new position. Even though Mike might look as the best possible candidate , compared to what the other candidates are or have to offer, can be very risky. Last but not least his relationship with the Finance Director’s nice might come up as a strong case too and the company, as mentioned before, does not have much to support otherwise.2. What defenses are available for XYZ to deploy should an aggrieved employee or would-be employee decide to bring a tribunal case? How strong a case could be mounted?In this case where the company might be facing direct discrimination there is no defence for this, but this case can be mounted with the occupational requirements. As stated in ‘BIS: Department for Business and Innovation & Skills’ web site: ‘It may be lawful for you as an employer to treat people differently when recruiting. In very limited circumstances, if you can show that someone with a particular protected characteristic (on grounds of age, disability, gender reassignment, marriage and civil partnership, race, religion/belief, sex or sexual orientation) is central to a particular job, then you can insist that only someone who has that particular protected characteristic is suitable for the job. This would be a genuine ‘occupational requirement’ (GOR)’The company can explain that Julie’s sex was not the reason she was not promoted but rather her age. The company has to explain that even if there was a young man her age they would still not hire that person, but they could choose to hire an older woman. This case does not seem to have good odds for the company to win but the company needs to show that the ‘comparator’ meaning the person they choose was not decided due to his age. Now as far as the age, referring to the direct age discrimination as the Equality Act says that it can be justified if the reason is ‘proportionate means of achieving a legitimate aim’. More Specifically in ACAS website ‘the Equality Act 2010 – guidance for employers’ it explains: ‘The Act protects people of all ages. However, different treatment because of age is not unlawful direct or indirect discrimination if you can justify it, i.e. if you can demonstrate that it isa proportionate means of meeting a legitimate aim. Age is the only protected characteristic that allows employers to justify direct discrimination.’So the company has to prove that by promoting Julie might actually harm the company. XYZ will need to show enough evidence to the tribunal explaining that she was not promoted because in case she would have taken Alan’s position she would not have had the desirable results of leading the Sales teams. Her colleagues would not accept her as a leader. By explaining these the company can have a case that it was not due to her characteristics (age and sex) but rather than what the company actually needs after Alan being in the position and running the Sales team so well for several years building a good clientele of about 500 customers a strong experienced person that can take over immediately. Alan’s successor needs to be able to handle these clients as good as he was and even better in order for the company tosucceed it’s goal. Even though this is a case that is highly unlikely to succeed the company needsto make an effort. Something similar was the case of John McCririck v Channel 4 Television
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