Employment Law Assessment.
Added on - 30 Sep 2019
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Employment Law Assessment1.What legal risks might XYZ be taking in following the course of action outlined in thiscase?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 ordisadvantaged due to prejudice or stereotyping related to some of their characteristics. TheEquality Act 2010 makes sure that people are not been discriminated against any more with thislegislation 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 saidthat 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 isalso much younger than the other people in the team. Therefore the risk in Julie’s case is thatshe might say that she was discriminated against on the bases of direct age and direct sexdiscrimination to an employment tribunal. Meaning that Julie was treated less favourably thanMike 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 wasdiscriminated 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 thatit was an act of age discrimination.Furthermore the case of Perrin Vs Fred Christophers Ltd ( 13thof February 2016) whereMs 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 ofemployment she won the case. On the bases of age and sex discrimination FC and JonChristophers were not able to prove that she was under performing and tried to replace herwith a younger person.In cases such as sex and age discrimination the penalties can be up to an average award of forsex discrimination £19,499 to a maximum of £442,366 and for age discrimination can me anaverage 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- indirectrace discrimination.The Equality Act protects employees from discrimination, harassment and
victimization because of the protected characteristic of Race, which may include differentelements that often merge: race, colour, ethnic origin and national origin.The equality Act protects such employees that their nationalorigin –birthplace, the geographicalarea and its history can be key factors that might not be treated fairly compared to anotherperson in the workplace.The reason that Aldo was not chosen was his poor written English ability which this needs to bespecifically 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 ofa 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 arelinked or associated with a protected characteristic. The person does not have the protectedcharacteristic but they are treated less favorably than others because of a protectedcharacteristic of a friend, spouse, partner, parent or another person with whom they areassociated.’ 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 ‘hisheard was not in the business’ after his daughter suffered with cystic fibrosis. The EmploymentTribunal decided in favor of Mr. Truman and concluded that his dismissal constituted disabilitydiscrimination 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 actioncompared 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 ideasentail. His first idea of changing the payment arrangements to wholly commission based is ahuge change for the people that are working there for some time can be something that is notpart 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 grievancesand unfair dismissal due to the fact that their overall performance should be taken into accountnot just their value of new sales. They might not be able to achieve their target because ofpolitical events, due to sickness and many more circumstances. This will definitely not boosttheir 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 ispressuring them into doing something they do not want to do and it’s personal. They also mightfeel that their lack of achieving their goals (achieving desirable weight/quitting smoking)mightput them under more pressure that can end up causing them more health problems due to theexcessive 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 notsufficient evidence to support their decision and they did not give everyone the chance toexplain their vision or plan for the new position. Even though Mike might look as the bestpossible candidate , compared to what the other candidates are or have to offer, can be veryrisky. Last but not least his relationship with the Finance Director’s nice might come up as astrong case too and the company, as mentioned before, does not have much to supportotherwise.2. What defenses are available for XYZ to deploy should an aggrieved employee or would-beemployee 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 forthis, 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 verylimited 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 thatonly someone who has that particular protected characteristic is suitable for the job. This wouldbe a genuine ‘occupational requirement’ (GOR)’The company can explain that Julie’s sex was not the reason she was not promoted but ratherher age. The company has to explain that even if there was a young man her age they wouldstill not hire that person, but they could choose to hire an older woman. This case does notseem 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 itcan be justified if the reason is ‘proportionate means of achieving a legitimate aim’. MoreSpecifically 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 notunlawful 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 thatallows employers to justify direct discrimination.’So the company has to prove that by promoting Julie might actually harm the company. XYZ willneed to show enough evidence to the tribunal explaining that she was not promoted because incase she would have taken Alan’s position she would not have had the desirable results ofleading 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 (ageand sex) but rather than what the company actually needs after Alan being in the position andrunning the Sales team so well for several years building a good clientele of about 500customers a strong experienced person that can take over immediately. Alan’s successor needsto 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