Employment Laws and Disputes: Dylan's and Max's Cases

This assessment discusses the employment laws and disputes in the cases of Dylan and Max, including issues of suspension, dismissal, and sexual harassment. It explores the relevant laws and provides analysis on the current and future possibilities. The assessment also highlights the legal risks and obligations for the employer in each case.

ASSESSMENT
TASK

Table of Contents
INTRODUCTION...........................................................................................................................3
MAIN BODY...................................................................................................................................4
Issues..........................................................................................................................................4
A. Dylan’s case......................................................................................................................4
B. Max’s Case........................................................................................................................4
Relevant Law.............................................................................................................................4
A. Dylan’s case......................................................................................................................4
B. Max’s Case........................................................................................................................9
Application................................................................................................................................10
A. Dylan’s Case.............................................................................................................10
B. Max’s Case................................................................................................................11
CONCLUSION.............................................................................................................................12
REFERENCES............................................................................................................................13

INTRODUCTION
Employment laws of a country affect the labour force directly and it is quite
crucial for such laws to be developed and enforced in a way that enhance development
of not just capital but also human resource. In today's fast moving world, differences of
opinion with regard to several issues that pertain to the labour force are unfortunately
quite common. Employment law statutes, related rules and regulations along with the
internal rules and regulations of the service contract are the guiding lights to resolve all
such disputes. In this assessment the same shall be discussed with respect to the given
scenarios.

MAIN BODY
Issues
As per an analysis of the given circumstances, in the capacity of EMEA Head of HR, the
following issues can be identified respectively:
A. Dylan’s case
1. Whether the sustained issues of irregularity allow the company to award
suspension?
2. What procedure and rights does Dylan have in case of dismissal?
3. What would be the significant liabilities of the Bank in each case?
4. What other current and future legal risks shall be taken note of?
B. Max’s Case
1. Whether it can be safely concluded that Max's action qualify for Anti-
Sexual Harassment laws to kick in?
2. What would be the corporate obligations in such a scenario and relevant
legal measures allowed?
3. What could be the possible legal risks of a suitable remedy?
The above mentioned issues look at each of the situations comprehensively for a
holistic understanding of both: current and future possibilities. Relevant analysis on
these lines with due reference to statutory and common law shall follow.
Relevant Law
A. Dylan’s case
1. Suspension of an employee
It comes with risks of several aspects particularly one of forced resignation and
create some burdens over the company in case a suit for compensation is filed.
Following is the broad application of laws:
If an investigation pertaining to a complaint is filed, a temporary removal is
necessary to ensure:

 that the evidence is preserved,
 witnesses are protected,
 business and other resources’ information and
 goodwill are secure
All in all the idea is that the employer successfully creates an environment for
proper investigation. Constructive dismissal is often the claim that is taken in cases of
suspension.1
The idea of constructed dismissal is based on material breach by the employer,
or inn other words a temporary denial of work for the employee thereby giving him an
opportunity to resign. A suspension needs to be reasonable and proper in light of the
investigation being made one. In cases, the same can’t be based on reason legal risks
loom large. It is not able to highlight that a successful investigation doesn't always need
a suspension It is not to be treated as a disciplinary action but the same isn’t a totally
well – accepted thought among employees.
The ACAS guidelines advice on keeping the suspension short and periodically
reviewed to justify the need and check upon the existence of any further cause to keep
the unwarranted suspension in continuance.2 Any suspension that is uncalled for,
thereby leads to a breach of trust and confidence between the employer and the
employee would likely result in a forced resignation based on constructive dismissal.3
Suspension is a special tool used in cases of gross misconduct4 and a few
others, as provided under the statute5 , getting investigated but there are other ways like
termination/dismissal which can suit the circumstances more often than not in cases of
gross misconduct. In fact, the idea of suspension is directly based on issues that are
similarly charged for dismissal. Suspension is merely a way to put a tag of justification
and due diligence on any dismissal by allowing even more hearing procedure to the
employee.
1 London Borough of Lambeth v. Agoreyo [2019] EWCA Civ 322, [2019] ICR 1572
2 U.K. Advisory, Conciliation and Arbitration Service Code
3 Upton-Hansen Ltd Architects (UHA) v. Gyftaki [2019] UKEAT 0278_18_0905
4 Sandwell & West Birmingham Hospitals NHS Trust v Westwood [2009] UKEAT 0032_09_1712
5 Harrison v. Barking [2019] EWHC 3507 (QB)

As mentioned above the necessity6 behind a suspension and not a “knee-jerk”
reaction must entail risk that is immediate, and well supported by good reason. Reasons
for suspension, the duration and obligations during the time of suspension have to be
well recorded in case such a step is taken.7 Such steps are generally by way of an oral
warning, followed by another final warning and subsequently dismissal. A due
adherence to these would reduce chances of suspension if necessary.8 It is a formal
process with no statutory backing but based on needs and in parlance of labour rights.
In Harrison v. Barking9, certain issues regarding a clinical negligence were the
reason for an enquiry after several long years of service which Harrison was not told off
specifically. Later on, there was a denial of casework which was an essential part of her
job. It led to the employee realising that there was a breakdown of trust and confidence
in her abilities and thus a material breach by denial of work was claimed. As a majority
of her duties as per the contracts were denied the suspension was tagged as a material
breach uncalled for.10
Another case pertaining to Upton-Hansen Ltd Architects (UHA) was about
allegation of unauthorised holiday and a previously uncalled absence brought in
question now. It was a case of constructive dismissal as a resignation was made. An
unfair suspension was highlighted in fears of improper future behaviour by a senior
member; and thus a breach of implied terms. A reasonable understanding of gross
misconduct is to be based in the contractual terms or the degree of negligent behaviour
shall be such that the general and specific needs of employment aren’t fulfilled.11
2. Dismissal
When it comes to dismissal of an employee, it is clear that a few conditions or
acts justify dismissal. As per the legislation itself an employer issues to its employees a
contract which has certain terms and conditions and therein also they have to include
certain particulars singularly dealing with disciplinary procedure and such disciplinary in
– charge in case a dismissal or certain other punishment or penalty is levied. These
6 Upton-Hansen Ltd Architects (UHA) v. Gyftaki [2019] UKEAT 0278_18_0905
7 Upton-Hansen Ltd Architects (UHA) v. Gyftaki [2019] UKEAT 0278_18_0905
8 London Borough of Lambeth v. Agoreyo [2019] EWCA Civ 322, [2019] ICR 1572
9 Harrison v. Barking [2019] EWHC 3507 (QB)
10 Harrison v. Barking [2019] EWHC 3507 (QB)
11 Sandwell & West Birmingham Hospitals NHS Trust v Westwood [2009] UKEAT 0032_09_1712

may be in addition to the general scheme of understanding gross misconduct as every
environment will have certain conditions of its own commonly referred as industry
needs.
The general statutory idea is to have a grievance and disciplinary procedure
which is applicable throughout the country, as is followed in UK. A code of practice on
disciplinary and grievance procedures by the U.K Advisory Conciliation and Arbitration
Service is the one to be followed. It is not a legally binding document any violation of
disciplinary procedures as under the legislation itself and the relevant rules cannot be
justified. The code is largely admissible in any employment tribunal setting a standard
and therefore it is a wise choice followed across the country for both the employer and
the employee.12
Employment Act, 2002 Dispute Resolution Regulations 2004 lay down a vivid
procedure when standard dismissal and disciplinary procedures of the ERA apply. A
simpler idea of the same, as discussed above, features: a prior meeting specifying the
grounds, contemplated action by the employer followed by any negotiations or
investigation if the need is such, while also allowing the employee mandatory right to
appeal.13 It is better to have most of these set out in writing. A legal risk looms very
large in case an employer fails to dismiss without suitable adherence to any of the
schemes laid out in the statute or an improper reference to the ACAS code.
Dismissal, similar to the notion of suspension, has to be applied only in cases of
gross misconduct14, sickness, violation of any statute causing dismissal, redundancy or
some other substantial reasons.15 These are the statutory requirements but none of
them can be taken as a carpet cover because additional contractual requirements are to
be followed as well; both by the employer and the employee.
Industry needs coupled with statutory requirements you are not ‘just’ enough
reasons to dismiss or initiate a suspension. Soft law or expected commercial practice,
as discussed above, in case of suspension talks about the immediate need and
unreasonableness. A similar rule has been followed time and again depending upon the
12 U.K. Advisory, Conciliation and Arbitration Service Code
13 Sec. 98(4), Empoyment Rights Act, 1996, Sandwell & West Birmingham Hospitals NHS Trust v Westwood [2009]
UKEAT 0032_09_1712
14 Upton-Hansen Ltd Architects (UHA) v. Gyftaki [2019] UKEAT 0278_18_0905
15 Sec. 98(4), Empoyment Rights Act, 1996

immediate context and unreasonableness. Additional norms like: statutory disciplinary
and dismissal procedures, ACAS guidelines are the spine of general law on dismissals.
Failure to establish fair dismissal would lead to several compensatory awards against
the company in the form of basic, compensatory, additional reductions as well as
bonuses. A heavy blow to business reputation and goodwill is lost in the employee
market affecting the core sales.
Establishing a claim of fair dismissal is relatively a simple process than a claim of
suspension and thereby unfair dismissal based on construction. If written reasons for
dismissal are delivered and discussed following the right of appeal in a co – operative,
cordial way then dismissal can be established to be just.
In a case pertaining to Qinetiq Limited16 Employment Appeal Tribunal
pronounced a judgment pertaining to unfair dismissals. Poor performance as result of
work based incapability if induced by employer is not a valid reason. Moreover, poor
performance if successfully accredited to a genuine case of illness would make the
dismissal unfair. Access to GP records is a norm as per the Disciplinary practices, after
due consent, to establish sickness and its gravity.
In JJ Food Services Ltd. V. Kefil17 the tribunal made it a point to highlight that its duty is
to seek what it would have done as an employer in the context to understand the
reasonableness claims. On the matter of due warnings: a reference to sufficiency was
made as well as to understanding of the proper remedial mechanism. All in all, be it
suspension or dismissal first task of legal analysis is to engage in a fair treatment and
then that process of investigation and contemplations shall be backed by reason.18
Ajaj v Metroline West Limited19, is quite a relevant ruling by the Employment
Appeal Tribunal. It highlighted the extent of gross misconduct and dishonesty that
makes a due dismissal fair. Calling in sick when the illness could not be proved with
additional proof of dereliction of duty in name of such dishonesty are fair grounds to
dismissal. The dismissal letter shall duly mention the same clearly. A genuine disbelief
16 Holmes v Qinetiq Limited [2016] IRLR 664, [2016] UKEAT 0206_15_2604
17 JJ Food Services Ltd. V. Kefil [2013] UKEAT 0320_12_1202
18 BHS v Burchell [1978] UKEAT 108_78_2007, Iceland Frozen Foods v Jones [1982] IRLR 439, [1982] UKEAT
62_82_2907
19 Ajaj v Metroline West Limited [2015] UKEAT 0295_15_0312

based on investigation and due diligence is protected. It was also cited as case of
fundamental breach of the trust and confidence against the employee.
B. Max’s Case
1. Sexual Harassment Rules
The Equality Act of 2010 warrants for protection against several different kinds of
discrimination. One such head is Sex and that delineates into sexual harassment and
simply put, it is an unwanted behaviour based on violation of dignity, intimidation,
degradation, humiliation or sexually offensive. Wide interpretation is given to curb the
menace and subjective approach is to be adopted as per the scheme of law. The scope
is thus, broad and the legal norms also apply to apprentices, interns, trainees as well as
workers.
A two-pronged approach has been ruled to test the veracity of acts as sexually
harassing the complainant.20As in a tortuous liability, the relationship between the
abuser and the victim shall be analysed to be in the form of an “employer – employee”
and secondly, the acts of abuse shall be tied to the relationship so established.
2. Employer’s obligation
Employees can claim vicarious liability under the Equality Act and along with that
is associated the idea of material breach in the nature of failure to provide a sexually
healthy and conducive environment. Such failure can be directly imputed as a primary
reason to resign in the forced circumstances crated or furthered by the vicarious liability
of the employer, to raise a claim for constructive unfair dismissal if the situation is not
properly handled.21
A sexual harassment based constructive dismissal, would result in financial
compensation on the basis of impact and trauma suffered by the employee at the hands
of inefficient management and failure to adhere to laws.
Application
A. Dylan’s Case
1. Suspension
20 Catholic Child Welfare Society v Various Claimants and The Institute of the Brothers of the Christian Schools
[2012] 3 WLR 1319, [2012] UKSC 56
21 London Borough of Lambeth v. Agoreyo [2019] EWCA Civ 322, [2019] ICR 1572

A suspension analysis would require the fair treatment of Dylan first of all.
The same has been meted to him. There was a proper analysis of his GP reports
and even the offers of subsequent changes in work structure and work desk were
made.
A final warning can be extended in light of the circumstance of his
incapacities, so expressed by him. An investigation regarding his face book and
social media posts, though, is necessary so as to understand the veracity of his sick
leaves.
2. Dismissal
Dismissal in light of the rulings cited above , especially Kefil and Ajaj, make a
strong case for the Bank. The need though is to follow the criteria of reasonableness
n the process. Only after a strong and clear establishment of his sickness and its
veracity shall dismissal be made in due adherence to ACAS , SSDP and any
contractual needs.
3. Significant liabilities
Significant liabilities of the bank in cases of suspension can be summarised as:
 stretched litigation based on unfair dismissal claims breaking of
trust in confidence material violation of contractual agreement
 high cost of litigation as well as compensatory awards which makes
tend even 2 bonuses
 a paid suspension which would be a denial of further recruitment
and kiss of earning capabilities
Significant liabilities of the bank in case of dismissal are way less complicated
and direct rather than manifold. A possible litigation based on an appeal which might
cause compensatory losses due to penalties in case of failure is the only scenario,
which can be adjusted as per the legal norms.
4. Legal Risks
The current dilemmas if dealt would highly reduce the chance of a successful
future legal claim. Current legal risk involves failure to identify various needs SDDP,

contractual requirements and ACAS Code. Failure to understand the legal rights of the
employee would materialise in difficult litigation. Right to fair hearing and subsequent
appeal is a major one in case of Dylan.
B. Max’s Case
1. Sexual Harassment Rules
The law clearly mandates a case against Max. The employer – employee relation is
well established as he commands Rosy on certain aspects. Further, his usage of
the professional means to cause direct impact to her by sexual slurs establishes the
second prong as well.
In such a scenario, there is a need to highlight his career with the Bank and seek
answers for such conduct. A suspension can be initiated only after such reply, if
deemed necessary. The suspension or dismissal is mandated as the act in question
holds gravity of utmost importance; and is a part of statutory laws as well as general
employment contract, service rules and internal regulations of management.
2. Employer’s Obligations
Bank’s duty to Rosy is vicariously established through Max. The Bank
shall not take the matter leniently and be quick in response to seek a reply for
such irresponsible and irreprehensible allegations put forth time and again by
Rosy to him as well.
3. Legal Risks
A sexual harassment based constructive dismissal, would result in a claim for
financial compensation on the basis of impact and trauma suffered by the employee
at the hands of inefficient management due to implied breach of statutory duties.

CONCLUSION
All in all, be it suspension or dismissal first task of legal analysis is to engagein a
fair treatment and then that process of investigation and contemplations shall be backed
by reason. Dismissal of Dylan , after an investigation of his real whereabouts shall be
the way ahead. The need though is to follow the criteria of reasonableness in the
process. Only after a strong and clear establishment of his sickness and its veracity
shall the dismissal process initiate.
Sec. 98(4) of ERA is seldom scrutinised suitably, and similarly less or no
reference is made to the need to identify gross misconduct in terms of the belief of the
employer. Sexual Harassment is an irreprehensible act and shall be discouraged.
Banks duty to Rosy is vicariously established through Max. A suspension of Max can be
initiated only after a suitable reply to Rosy’s complaint.

REFERENCES
Advisory, C., Arbitration Service (ACAS)(2009) Code of Practice on Disciplinary and
Grievance Procedures. ACAS, London. http://www. acas. org. uk/index. Aspx.
Al-Haidar, F., 2018. Administrative disciplinary and grievance procedures for public
employees in Kuwait and UK. International Journal of Law and Management.
Baker, A., 2020. The ‘Range of Reasonable Responses’ Test: A Poor Substitution for
the Statutory Language. Industrial Law Journal.
Brodtkorb, T., 2010. Employee misconduct and UK unfair dismissal law. International
Journal of Law and Management.
Collins, H. and Mantouvalou, V., 2013. R edfearn v UK: Political Association and
Dismissal. The Modern Law Review, 76(5), pp.909-923.
Griffith, R., 2010. Managing grievances in the workplace. British Journal of Healthcare
Management, 16(10), pp.490-494.
Lewis, D. and Sargeant, M., 2019. Employment law: the essentials. Kogan Page
Publishers.
Ling, L.S. and Dhillon, G., 2018. Managing Employment Dismissals in Malaysia and
England–A Legal Guide. Jurnal Pengurusan (UKM Journal of Management), 52.
Wadham, J., 2010. Blackstone's guide to the Equality Act 2010. Oxford University
Press, USA.
Taylor, S. and Emir, A., 2015. Employment law: an introduction. Oxford University
Press, USA.