Employment Law Referral Assessment

This report discusses the provisions of employment law related to unfair dismissal, gross misconduct, and the procedure of employment Tribunal. It includes case summaries of Michael Walsh and Holly Sakaria, case laws on gross misconduct and discrimination at the workplace, and relevant Acts and legislation that guarantee employee protection.

EMPLOYMENT LAW
REFERRAL
ASSESSMENT

Contents
INTRODUCTION...........................................................................................................................1
TASK 1............................................................................................................................................1
CASE SUMMARY OF MICHAEL WALSH.................................................................................1
CASE LAWS ON GROSS MISCONDUCT...................................................................................3
Holly Sakaria...................................................................................................................................3
Case Laws On Discrimination At Work Place:...............................................................................5
Naarczyk versus TJ Morris LTD and Cowley.................................................................................7
CONCLUSION ..............................................................................................................................8
CONCLUSION ...............................................................................................................................8
REFERENCES................................................................................................................................9

INTRODUCTION
In UK there are more than four million companies which provide the employment to over
21 million full-time employee's. All the employers and the employee's are govern under the
employment law of UK. The employment laws of UK are placed to protect the rights of
employees which are violated by the employer in a manner of unfair dismissal, holidays, pay,
discrimination and many more. The laws made not only to protect the employee's but also there
are laws which also safeguard the employer's interest. The main purpose if enacting the
employment law is to maintain the relationship between employer and employee. Basically the
employment law framed to regulate the functions of organisation properly without any
misconduct, discrimination and other wrongful activities. Because the contract is made between
the employer and the employee at the starting and in that contract various bonds were made
between them regarding to employment, equal pay, holidays entitlements, maternity and
paternity leaves, discrimination, equality, the redundancy process and much more. Even, in this
report the provisions of employment law will get discuss related to unfair dismissal, gross
misconduct and the procedure of employment Tribunal1.
TASK 1
CASE SUMMARY OF MICHAEL WALSH
Michael Walsh was a taxi driver in a company name as Fast Cars in Milton Keynes.
Michael had been working for the last three years in the same company. The incident took
place outside the company between Michael and Giovanni who is also a fellow taxi driver.
Last week in a party Giovanni kissed a girl age of 15 year who is a daughter of Michael,
when Michael came to know about the incident Giovanni got head butted and fell to the
ground and also by the attack of Michael, Giovanni hand was fractured and also got wound
on head. As a result of this incident Michael got dismissed by the owner of Fast Cars
company on the grounds of misconduct. Michael was not satisfied with the dismissal and
there is a clause in the employment contract of Michael with the Fast Cars company that,
either party must give a prior notice period of 12 weeks to terminate the contract of
employment. Michael with dissatisfaction of the dismissal would like to take the case to the
Employment Tribunal.
1 'Rebooting EU Employment Law' (2018) 3 European Employment Law Cases
1

Employment Tribunal
It is a tribunal for the employers as well as for the employees who are engaging
themselves in the contract of employment. The Employment Tribunal deals with the case in
which the employee's bring the claim against the employer. Claim can be demanded on the
basis of unfair dismissal, discrimination, equal pay, deduction in wages and the redundancy
process. The main reason of the employee's to take the case in tribunal against the employer
is that, they realized that they were not treated lawfully and their rights got violated and their
dignity got damage by their employer's2.
GROSS MISCONDUCT
It is an action or the behaviour of the employee's which is not acceptable in the company or
workplace. The word suggest itself that misconduct means that activity or an action of the
employee which, breaks the rules and policies of the company. In the other word it can be
said that, an activity of the employee which disturb and damage the companies environment
or it also breach the conditions of a contract formed between the employer and the
employee. Misconduct also mention as an activity which is against the disciplinary policy of
a company. There are few activities which would considered as gross misconduct mention
below;
 Theft & Dishonesty
 Vandalism of Employer property
 Fighting or Physical Violence ( This is the subject matter of the Michael case)
 Gross Negligence
 Accepting or offering bribes
 Fraud
There are many others activities which can be said as misconduct. In the punishment of
conducting gross misconduct the employer can immediately dismiss the employee from the job.
It means there is no requirement of fulfilling the conditions prescribed in employment letter or in
a contract i.e. no need to give notice or payment in regard of notice. It just need a proper
investigation on that misconduct and a fair chance has been given to the employee to produce
2 Blackham A, 'Empirical Research And Workplace Discrimination Law' (2019) 3 Brill
Research Perspectives in Comparative Discrimination Law
2

something in defence. If the employer didn't fulfil the procedure fairly then, employee right got
violated and it can said that there is an unfair dismissal by the employer.
In context of Michael case, right decision was taken by the Fast Car's company owner by
dismissing the Michael on the point of beating and gave serious injuries on head and hand to
Giovanni. Therefore, Michael has a reason to behind that fight but, that's not the right action to
take at such situation. Such activities and actions were against the professionalism and such
people will put negative impact on others. So, according to me as a legal advisor and in the eyes
of law also, there is a provision in the UK employment law to dismiss the employee if any gross
misconduct was done by them without, giving any prior notice of dismissing or paying.
As per the Section 94 subsection (1) of an Employment Right Act, 1996, an employee cannot be
dismissed unfairly by his employer. Whereas, Section 95 of the same Act , provides for the
circumstances in which an employee can be dismissed.
Section 95(1) of the Act, an employee can be dismissed by his employer if:
(a) The contract of employment is terminated by the employer with or without notice.
(b) if an employee is employed for a limited period and such contract terminates without being
renewed under the same contract.
(c)if the employee himself terminates the contract under which he is employed with or with out
notice under a circumstance in which he has the right to terminate without notice due to
employers conduct.
The Employment rights Act, 1996 provides that an employer can dismiss employee on gross
misconduct with or without notice.
There are so many related cases, it will be easy to understand the case of Michael with the help
of relevant case laws;
CASE LAWS ON GROSS MISCONDUCT
Addis V Gramophone Co Ltd.[1909] AC 488.
In this case it was held that, the employer as well as the employee's was entitled to end
the contract of employment without cause. The employer could act unreasonably, employer was
not bound to hear the employee before dismissing.
Mahmud's Case
In this case the house considered the application of implied term. In this case there is a
breaching of implied term was not relied upon as a foundation for a claim for constructive
3

dismissal. An employee claimed damages at common law for breach of implied term. Court held
in this case that, the claim was founded as a matter of law. Damages for breach of trust and
confidence implied term should be delayed in accordance with ordinary contractual laws.
Johnson V. Unisys Limited
The scope of a claim for wrongful dismissal was considered by the House of Lords in this
case by the Lord Hoffman that, the action for wrongful dismissal is based on an implied
obligation in the employment contract to give reasonable notice of an intention to terminate the
relationship in the absence of just cause for dismissal. The remedy for breaching the contract is
an award of damages based on the period of notice which should have been given3.
Holly Sakaria
As per the given facts and circumstances, wherein a lady named Holly owns a boutique
titled as 'Fleek', which specialise in trendy offbeat and bespoke pieces of women's clothing.
There are seven full time staff members employed in a store. Holly never favoured the part time
employment because according to her part time staff is nuisance. Subsequently, the store was not
profitable as it used to in previous years. Due to poor performance of business and to avoid extra
expenses Holly decides to redundant one of her staff member named Claire Ryan who associated
with Holly for many years. The reason for Claire's redundancy was that she does not comply the
decorum of the store and has changed her appearance which is affecting the reputation of the
store. Claire Ryan has shaved her heir off and remained like that for last six months, she even
started wearing men's clothings due to which other staff members including Holly gets
uncomfortable. Holly has no choice but to remove at least one staff member and she finds Claire
to be the one for redundancy.
Issue
 whether the grounds on which redundancy of Clair's considered to be valid or not ?
 Whether the act of Holly was capricious or did she violate the fundamental rights of
equality against Claire ?
Rule
An Employment law is a collection of rules and regulation relating to employees which
grantees several rights and remedies against employer's capricious and arbitrary actions against
3 Carabetta G, 'Off-Duty Misconduct And The Employment Relationship: A Review Of
The Case Law' [2020] SSRN Electronic Journal
4

employees. Employment law gives legal protection to employees and covers all the facets
involving employer employee relationship. In employment law there is huge exhaustive list
which are governed under employment laws. For instance , some of the most common areas
which employment law regulates is employers obligations and employees rights such as ,
employment terms and conditions, policies, equal pay for equal work, leave entitlement, working
hours, boards and committees on grievances and disciplinary committee, maternity and paternity
leave, kinds of discriminations, equality and diversity at workplace, unfair dismissal, healthy
working environment including reasonable comfort for employees having disabilities,
redundancy criteria etc. Each employee is covered under the employment law from the moment
he/she apply for a jo4b.
There are different Acts and legislation which guarantees employees protection. Such as,
Equality Act 2010, which prohibits any for of discrimination against employees at work place.
National Minimum Wage, which determines wages based on age of an employees. Health and
Safety at Work Act 1974, which ensures safe working environment for each employee. All
these Acts and legislation works for employees protection.
Whereas, redundancy is a form of dismissal from employment when the role of employee is not
required in a firm, store, company or an organisation. The reasonable grounds when redundancy
can happen is if the organisation is closing down or there is change in the work profile or shifting
business location. On these grounds redundancy can be considered without any objection form
the person being subject to redundancy. However, redundancy on grounds of religion, colour,
sex,gender are purely an act of discrimination which are against the principles of natural justice.
An act of redundancy without justifiable grounds is the violation of fundamental right of a
person under an employment.
As per the UK Equality Act 2010, which guarantees protection against any form of
discrimination at workplace. These legislative framework are inevitable for preventing
employers to act arbitrarily against employees. In the given case the grounds on which Claire
was dismissed is due to her appearance and clothing. As per the observation of Human Rights
commission on Equality, there are lot of instances where employers are dismissed on grounds of
their personal attributes which is against the principle of natural rights. Human Right
Commission in this respect aims to counter the standing challenges of Redundancy and to protect
4 Leckey C, '2020/9 Employment Tribunal Finds That ‘Workers’ Transfer Under TUPE
(UK)' (2020) 5 European Employment Law Cases
5

the dignity and ensure security to the targeted employees at workplace. The grounds of
redundancy, especially on ground of physical appearances and masculine attributes does not fall
in the reasonable grounds and no organisation can remove employees on such grounds.
Case Laws On Discrimination At Work Place:
The Act which protects an employee from redundancy on grounds of physical attributes
falls under Equality Act 2010. redundancy of an employee on grounds of race,
colour,caste,religion, physical attributes is no ground for dismissal, it is rather a form of
discrimination and purely an arbitrary act which injures the dignity of a person.
There are laws which gives freedom and rights to all including, freedom to wear
anything, freedom of movement, freedom of occupation etc. individual freedom and choice
cannot be subject to restriction if it does not hurt the fundamental aspects of law.
Long before, the Universal Declaration of Human Rights has drafted a document which is a
collection of human rights and freedoms to be guaranteed within the legal framework and each
member state is obliged to implement such laws in their domestic laws. These laws aims to
protect and secure an individual socially, politically and economically and provide equal
opportunities for their personal growth. No state can deprive an individual from his/her legal and
fundamental rights. However, these rights are subject to certain restriction but to impose
restriction on such rights reasonable grounds needs to be established. Considering the issue of a
given case, there is no valid ground established at the first instance to satisfy or consider the
given facts because it is purely a discrimination. Every person has the right and freedom to wear
anything of his/her own choice. In a famous case of Nazarczyk versus TJ Morris ltd and
Cowley, Employment tribunal held that the remark made by manger to go back to Poland to one
of employee is purely of discriminating nature and it was made with intent and knowledge that
his remark will hurt the dignity of employee. The judgment directed the employer to apologise
the employee and directed to initiate a diversity training programme and respect the individuals
coming from different background5.
As per Employment Regulation Act, 1996, the purpose behind redundancy is to reduce
workforce to avoid expenses or where a business is not performing well or other factors. The
5 Swiatkowski A, '2018/26 Unilateral Changes To Employment Terms And Conditions
Treated As Redundancy In Employment Law (PL)' (2018) 3 European Employment
Law Cases
6

grounds for redundancy is certain and very much valid in the eyes of the law. Whereas ,
redundancy on grounds of personal attributes or dressing is does not quality for valid
redundancy. Mostly, the people belonging to the minority section face such discrimination
because they could not make pace with the high urban culture. According to section 6(1) of
Employment Equality Act , a person can claim remedy for unlawful redundancy on ground of
appearance and physical attributes. There is no ground based on appearance and clothing
mentioned anywhere in law which gives legal force for redundancy. It is completely illegal and
purely discriminating. There is a popular test named Harksen test which is utilized to test the
whether the act of redundancy harmed or injured victim's reputation or dignity. Integrity and
dignity of a person always attached with the rights and freedom of a person and no law permits
to hurt the dignity and integrity of a person.
Application
In the given case, Claire was asked to go off from the store by the store owner Holly who
wants to remove one employee from staff because business is not doing well and to save
expenses holly decides redundancy of Clair and the reasons for redundancy was her physical
attributes and clothings. It is no valid ground to make her out from employment suddenly. In a
case of EAD Solicitors LLP & 7 Ors versus Abrams, it was held in this case that an individual
will permit to bring an age discrimination relief because these reliefs are based on protected
characteristics. Further, the court held that a corporation has the liberty to bring discrimination
claim only if such person is targeted to discrimination. A person can only get the remedy against
discrimination if he falls under the list of discrimination provided in Equality Act 2010. the legal
system of UK is based on Common law6. There are usages and costumes which are being
followed in the name of law. There is no written constitution of UK, therefore, sometime it is
difficult for the courts to determine the case on many matters. But, the UK legal system is based
on the principle of natural justice and free conscience. The act of holly appears to be arbitrary
and reflects the stereotype. The other part of of the situation is that, the business of holly was not
profiting and due that she took decision to remove one staff member. Now the burden of proof is
on the holly to prove her intent with reasonable justifications.
6 Mujuzi J, 'The Seychelles Employment Tribunal: The Drafting History Of The
Employment (Amendment) Act Of 2008 And Its Relevancy To Understanding The
Work Of The Tribunal' (2022) 55 De Jure
7

The provisions for redundancy are provided in section 137 of the Employment Rights Act 1996,
in which grounds of redundancy is given where employee can be dismissed.
According to section 137 subsection 1, subject to the provision of this Act, an employee who is
dismissed shall be deemed to be dismissed if:
(a) if the employer has ceased or intends to cease the business to be carry on or:
(b) employed do not wish to carry on the business where the employee was so employed.
In this case, there is clear that the grounds for Claire redundancy is unlawful and against the
provisions of Employment Rights Act 1996. Holly did not gave the legit reason for her Claire's
redundancy therefore, redundancy of Claire is capricious and discriminatory on ground of sexual
orientation.
Case Laws On Discrimination On Work Place:
Naarczyk versus TJ Morris LTD and Cowley
Facts of the case:
There was an employee belonging from Poland. In the course of office he requested his
manager to grant leave early because he wanted to drop his daughter at home safely. The
manager refused and remarked to go off from office and go back to Poland if you do not like to
work in here. The managers was frequently used to tease and make remark and comment on his
being polish from last six years. Resulting to this the employees claimed race discrimination.
Issue
whether the manager is liable for discrimination or not ?
JUDGEMENT
Employment tribunal in this case held that the remark made by the manager was discriminatory
and the manger should make apologise. The manager should initiate diversity training
programme.
EAD Solicitors LLP & 7 Ors versus Abrams
Facts of the case:
A member of an LLP was near to his retirement age and has planed to set up a PLC
which allows him to become a member of the LLP at his place, the company approved to allow
the LLP with the services by enabling an individual to work for it. There was no legal obligation
established for the services as the company could have given any other to carry out the work as
the individual was neither an employee nor a worker with no contract with the LLP.
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ISSUE
WHETHER THE DISCRIMINATION TOOK PLACE OR NOT ?
DECISION
As per the facts of the case, it was stated that only an individual can bring the claim of
age discrimination because these claims are backed by protected characteristics. The court stated
that a corporation may bring a claim of discrimination because it is connected with an
individual protected characteristics.
CONCLUSION
From the above relevant extract employment law, it is evident to conclude that UK
employment law is the legislation which covers employees rights and guarantees protection from
arbitrary action of an employer. An Equality Act of 2010, guarantees protection and prohibits
any form of discrimination at work place. There are several Acts and legislation which are
implemented for the protection of employees including their dignity. These laws aims to promote
equality and diversity at different work place or and an organisation. The United Nation
Convention on Equality and protection of employees directs the UK government to legislate and
enforce the model for employment rights and freedoms in the Statutory form. This report has
covered all the relevant provisions including case laws to support the given situation based
redundancy and age discrimination.
9

REFERENCES
Books and Journals:
'Rebooting EU Employment Law' (2018) 3 European Employment Law Cases
Blackham A, 'Empirical Research And Workplace Discrimination Law' (2019) 3 Brill Research
Perspectives in Comparative Discrimination Law
Carabetta G, 'Off-Duty Misconduct And The Employment Relationship: A Review Of The Case
Law' [2020] SSRN Electronic Journal
Gegaden L, '2020/20 Dismissal Unfair Where Decision-Maker Was Not Given Accurate
Information (UK)' (2020) 5 European Employment Law Cases
Leckey C, '2020/9 Employment Tribunal Finds That ‘Workers’ Transfer Under TUPE (UK)'
(2020) 5 European Employment Law Cases
Mujuzi J, 'The Seychelles Employment Tribunal: The Drafting History Of The Employment
(Amendment) Act Of 2008 And Its Relevancy To Understanding The Work Of The
Tribunal' (2022) 55 De Jure
Swiatkowski A, '2018/26 Unilateral Changes To Employment Terms And Conditions Treated As
Redundancy In Employment Law (PL)' (2018) 3 European Employment Law Cases
10