Employment Law Case Study

This assignment examines a case study involving a cafeteria owner who suspects an employee of theft. It analyzes relevant UK employment laws, including unfair dismissal, gross misconduct, pregnancy discrimination, and the Burchell test. The assignment provides advice to the employer on how to proceed with disciplinary action while adhering to legal requirements.

Employment Law

Employment law governs the relationship between the employer and the employees and
regulates the expectations of the employer from the employees (Barnard, 2012). The
employment law provides with the provisions pertaining to what the employer can ask from the
employees to do and what are the rights of the employees at place of work. While recruiting an
individual the legal factors which affect the recruitment and selection process are discrimination,
right to work in Britain, criminal records check and data protection. All these are protected and
governed under various different legislations and provisions, for instance, the Employment
Rights Act, 1996 governs the principles of unfair dismissal, the Equality Act, 2010 covers the
provisions related to discrimination, etc.
The employment responsibilities of an employer are determined by the type of contract
and the employment status of the employees. The various type of employment contracts are –
full-time and part-time contract, fixed-term contract, contract of agency, freelancers &
consultants contracts, and zero hour contracts (GOV.UK, 2012).
The given case provides that the cafeteria owner Adams has employed a number of part-
time staff for waiting on tables and working behind the counter. A part time worker is a person
who works for lesser hours than a full-time worker. There is no specific limit of number of hours
which describes one as a full-time worker or part-time worker. But, generally a full-time worker
has to work for 35 hours or more in a week. The part-time workers are entitled to be protected
from unequal treatment in comparison to the full-time workers (GOV.UK, 2012). The part-time
workers are entitled to same treatment on the grounds of – equal pay rates comprising of sick
leave, maternity, paternity and adoption leave etc., pension related benefits, holidays,
opportunity of training and career development, selection in terms of promotion, transfer and for
redundancy, equal opportunities for career breaks, and the part-time workers are entitled to pro
rata benefits, such as Christmas bonus.
Though, the employer should treat the part-time workers equally but there are certain
conditions under which the employer can treat the part-time workers differently, by giving a
reasonable justification, called as 'objective justification'. For instance, the employer can
differentiate in terms of health insurance in case he can objectively justify the same. The part-
time workers can discuss the matter of unequal treatment with the employer of the trade union
representative and the employer is liable to give reasonable justification for the same, in writing
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within 21 days. Further, if the worker is not satisfied with the response of the employer then he
can make a case and file to an Employment Tribunal (Dickens, 2012).
Dismissal means when a contract of employment is terminated without being given
notice of or without notice, or when the fixed-term contract is concluded and is not renewed, or
whenever an employee leaves with or without giving a notice to the employer owing to his
conduct.
The term unfair dismissal is described generally as the termination of the employment
contract by the employer without any reasonable justification. The Employment Rights Act,
1996 covers most of the provisions in relation to unfair dismissal of the employees. The Act,
1996 under section 94 provides that every employee has a right of not being unfairly dismissed
by the employer. For making a case under unfair dismissal there are certain criteria which are to
be fulfilled, such as – the employee must have been dismissed, and should be an employee and
not a worker, should have been employed for a prescribed qualifying period of time, should not
fall under the excluded categories, and should have filed a claim in three calendar months from
such dismissal (Busby, 2011). In the case of R v Secretary of State for Employment ex parte
Seymour-Smith and Perez (17th February 2000) it was held that the statutory duration of
qualifying of two years was challenged on the grounds that it favours men more than the women.
The Court of Appeal accepted this and as a result the qualifying period of two years was reduced
in the year 1999 to one year but this was increased again in April 2012.
Apart from the above referred cases the employee does not require to serve notice period
and the dismissal is considered as automatic unfair dismissal without any specific period of
qualifying time. For instance, whenever an employee is dismissed under health and safety
reasons or is dismissed for participating under the trade union activities or when the employee is
enforcing any of his employment rights, etc.
Whenever any employee is unfairly dismissed by the employer then such an employee
can make a claim of compensation to the Employment Tribunal. The Employment Rights Act,
1996 and the Trade Union and Labour Relations (Consolidation) Act, 1992 provides that the
Employment Tribunal can make a decision for reinstatement, re-engagement and compensation
for unfair dismissal. Reinstatement means that the employee is re-employed in the role or
position from which the employer had dismissed him. In the case of Chagger v Abbey National
PLC & Hopkins (2009) the Employment Tribunal held that the dismissal of the employee on the
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grounds of race is unfair and discriminatory. The compensation includes the basic award and
compensatory award. The basic award is a statutory amount which is given as compensation
which is calculated by considering the factors such as duration of continuous service, age of the
employee and the amount of a weeks' pay of the employee (MacIntyre, 2018). Whereas, the
compensatory award is the amount of compensation which is determined by the tribunal which is
just and equitable and in accordance to the loss the wages, whether present or future.
Though, the employer can dismiss the employees if there are reasonable grounds for
dismissal, such as gross misconduct. Gross misconduct means behaviour of an employee which
is considered to be not good and destroys the employer-employee relationship and results in
instant dismissal without giving a notice for dismissal or pay in lieu of notice for such dismissal.
It is the responsibility of the employer to provide a clear indication to the employees as to what
type of behaviour would amount to gross misconduct. Generally, the employment behaviour
such as intoxication, physical abuse, indecent behaviour, theft, sabotage, breach of health and
safety rules and regulations, etc. are considered as gross misconduct, which brings about
disrepute or serious breach health and safety rules in the organisation. The cases which are
considered to be of gross misconduct by the employer are clearly determined in the company's
disciplinary policies or staff handbooks (Painter and Holmes, 2015). In the given case Mr. Adam
can terminate the employment contract of any employee on the grounds of gross misconduct but
such instant dismissal he has to provide fair and reasonable justification. The ACAS Code of
Practice is the a disciplinary and grievance procedure which provides guidelines for handling
issues at workplace, such as dismissal on the grounds of gross misconduct.
There is a misconception that the employer cannot dismiss the employee in case such an
employer is unable to produce any indisputable evidence of the wrong doing of the employee
(Cabrelli, 2016). The employer has to comply with the 'Burchell Test' which was given in the
case of British Home Stores v Burchell [1978] IRLR 379. There was a three stage test given
under the case which helps in determining that the dismissal is fair or not. Firstly, if the employer
believed that the employee is guilty of misconduct (Sappideen, O'Grady and Riley, 2016).
Secondly, the employer had a reasonable ground for believing that the employee had committed
misconduct. And, lastly, the employer had carried out reasonable investigation or not. The
Employment Tribunal will look into the matter and give a decision that whether the employers'
decision of dismissing the employee is a reasonable response or not, which any prudent and
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reasonable employer in the same business would have adopted under similar circumstances. The
Burchell test lays down the principle that even if any evidence emerges after the dismissal of an
employee proving the innocence of the employee then also the dismissal will be considered to be
fair as it was the result of reasonable belief of the employer at the time of the dismissal.
While an employer can opt for dismissal whenever any case of gross misconduct occurs
involving any of the employee during the course of employment, but instant dismissal is
considered to be very serious and there are other factors which should be taken into account by
the employer before dismissing the employee (Lockwood, Henderson and Thornicroft, 2012).
The employer is expected to conduct an investigatory meeting which allows the employer to
come to a decision to take disciplinary actions or not, which is clarified by the responses of the
employee concerned in the matter. The ACAS code of practice provides the guidelines to be
considered while conducting an investigatory meeting, which should be conducted without
unreasonable delay, but the employee should be given reasonable time to prepare the case.
In the UK there are several legislations and regulations for the protection of maternity
rights of a woman employee. The Pregnancy Discrimination Act, 1978 specifies the provisions
that the employer should prevent any discriminatory treatment against the women employees and
should provide protection during and after pregnancy to such employees. The Act, 1978 and the
Family Medical Leave Act, 1993 should go along and provide protection to the women under
employment choosing to bear a child. The statutory law for pregnant employees provides that
any pregnant employee is entitled for maternity leave of around 52 weeks out of which 39
weeks falls under the category of Statutory Maternity Pay (SMP) which is being paid by the
employer. SMP comprises of 90% of the employee's weekly wage and afterwards the payment of
a statutory amount which is decided and fixed by the government for the rest of the weeks during
the maternity leave. Also, there are provision in the law which allows a pregnant woman take an
entire off and then return to work and resume the same role or status. In 2015 the government
amended the legislations and regulations to incorporate the paternal leave and shared parental
leaves (Adams, Winterbotham and Oldfield, 2016).
There is no legal obligation on an employee who is pregnant to disclose that she is
pregnant at the place of work, as this is more of a personal choice of the employee to disclose
about the pregnancy. But, the employee should disclose the condition to the employer in order to
avail the maternity leave and take care of the child. If any employee is dismissed on the grounds
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of pregnancy then it makes a case of an automatic unfair dismissal as well as discrimination, for
which the employee can file to an Employment Tribunal (Baird, 2016). Therefore, the employee
working at the cafeteria of Mr. Adams could have disclosed about her condition whenever she
wishes or desires. The employer should avoid any discrimination against the pregnant women
employed in the organisation by ensuring that the pregnant women employee are treated equally
like the other employees in the organisation.
The Equality Act, 2010 is the major legislation in the UK providing protection to the
individuals against all or any kind of discrimination on the basis of race, sex, pregnancy, etc. The
Act, 2010 clearly states that the employer should not treat the pregnant women or a woman who
just had a baby, unfairly as this would amount to pregnancy and maternity discrimination. The
discriminatory practices or acts are considered unlawful under the Act, 2010, which means that
the aggrieved person can bring an action in the Employment Tribunal (Cotter, 2016). The section
18 of the Act, 2010 states that it falls under the category of pregnancy discrimination if a women
is treated unfavourably because of her pregnancy or on the grounds that she is willing to take or
has taken maternity leave.
In the case of Dekker v Stichting Vormingscentrum voor Jonge Volwassen (8th
November 1990) the European Court of Justice held that any pregnant employee can directly
initiate a case for discrimination and not necessarily has to identify with a non-pregnant
comparator. The Act, 2010 specifies that pregnancy or maternity discrimination is termed as
“unfavourable treatment” under the Act and not as less favourable treatment, meaning thereby
the comparison between the pregnant woman and a non-pregnant woman is not required. An
individual who is employed by any employer can claim for protection against pregnancy and
maternity discrimination under the Act, 2010 on the grounds of – pregnancy or pregnancy related
illness (Wright and Conley, 2011).
Letter of advice
Dear Adam,
As you have sought advice on the concern of dismissing Jane owing to her suspicious conduct
in the matter of missing money. It can be inferred from the above mentioned employment laws
that as an employer you can initiate the disciplinary proceedings on the grounds of gross
misconduct and cannot immediately or instantly dismiss her from employment. Though, theft
can be one of the factors to fall under the category of gross misconduct for which but gross
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misconduct which allows an employer to dismiss any of the employee without giving notice or
paying in lieu of notice, but the ACAS code suggests that the employer should investigate into
the matter before instantly dismissing the employee. You can apply the 'Burchell test' to come
to a decision for dismissing Jane on the grounds of gross misconduct, which was propounded in
the case of British Home Stores v Burchell, as discussed above. You have conducted an
informal meeting to raise the concern about the missing money and observed that Jane was
agitated when the concern was raised. Also, you have found out from the other employee
Hillary that recently Jane has been acting suspiciously. Though, these facts might lead to
considerations that Jane would have been responsible for the missing money but this does not
prove anything substantial, as this does not amount to any indisputable evidence. And, apart
from this there is no other evidence which can prove that Jane is guilty.
Further, you have sought advice on the concern that dismissing Jane under her condition
of pregnancy might lead to litigation. Jane has disclosed that she is pregnant and will be
needing maternity leave after a few months. There is no legal obligation in terms of disclosure
of pregnancy at the workplace, therefore, it is more of a personal choice to disclose that she is
pregnant and this should be considered as coincidental and not necessarily in context of the
missing money. The Equality Act, 2010 states that the woman employee should not be
discriminated on the basis of pregnancy and maternity. In fact the law and general practice
suggest that if a pregnant woman employee is to be dismissed then it is unlawful and falls under
the category of pregnancy and maternity discrimination, having legal implications attached to it.
If a pregnant woman employee has to be dismissed even on the grounds of gross misconduct
then the employer should give a formal warning and conduct a disciplinary meeting in relation
to the issue involved, before immediately dismissing her. In the given scenario also, Adam, you
being the employer should first give Jane a warning and then conduct the investigatory and
disciplinary meetings to get clarity on the facts involved in the matter of missing money.
Therefore, it can be advised that Mr. Adam, you can suspend Jane till the disciplinary
proceedings and investigations are conducted and concluded. Also, an employer cannot deny
the statutory maternity leave, so you cannot make discriminatory decisions in terms of
maternity leave as this the statutory right of an employee and can result into litigation, if
infringed.
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REFERENCES
Books and Journals
Adams, L., Winterbotham, M. and Oldfield, K., 2016. Pregnancy and maternity-related
discrimination and disadvantage.
Baird, M., 2016. Maternity, paternity and parental leave. In Encyclopedia of Human Resource
Management. Edward Elgar Publishing Limited.
Barnard, C., 2012. EU employment law. Oxford University Press.
Busby, N., 2011. A right to care?: Unpaid work in European Employment Law. Oxford
University Press.
Cabrelli, D., 2016. Gross misconduct. In Encyclopedia of Human Resource Management.
Edward Elgar Publishing Limited.
Cotter, A.M.M., 2016. Pregnant pause: an international legal analysis of maternity
discrimination. Routledge.
Dickens, L. ed., 2012. Making employment rights effective: Issues of enforcement and
compliance. Bloomsbury Publishing.
Lockwood, G., Henderson, C. and Thornicroft, G., 2012. The Equality Act 2010 and mental
health. The British Journal of Psychiatry. 200(3). pp.182-183.
MacIntyre Ewan, 2018. Business Law, Pearson.
Painter, R. and Holmes, A., 2015. Cases and materials on employment law. Oxford University
Press, USA.
Sappideen, C., O'Grady, P. and Riley, J., 2016. Macken's Law of Employment.
Wright, T. and Conley, H. eds., 2011. Gower Handbook of Discrimination at Work. Gower
Publishing, Ltd..
Online
GOV.UK. 2012. [Online] Available Through
<https://www.gov.uk/browse/employing-people/contracts>./
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