Employment Law and Employee Security

This assignment explores key aspects of employment law with a focus on ensuring employee security. It emphasizes the importance of reliable payment systems and systematic performance evaluations to improve employee performance and reduce turnover. The document also discusses legal frameworks and best practices related to these concepts.

EMPLOYEE LAW AND
RELATIONS

EXECUTIVE SUMMARY
Recruitment is the process to identify the requirement to hire employees and then calling
applications in respect to them. Once the requisite number of applications are received, a
structured selection process commences, which chooses the candidates suitable for the job. BC
Ltd in the present case has decided to undertake internal recruitment for the position of Sales
Director in the company. The potential claims which may be raised against ABC Ltd are all
arising from the Equality Act 2010. The statutory defence of 'all reasonable steps' shall require
the company to establish that the recruitment and selection policy followed by the management
specifically prohibits discrimination. Another defence which can be raised by the company is in
relation to 'Objective Justification' Defence. In pursuance to this defence it shall be established
by the company that the action under consideration was proportionate in nature and was
undertaken only for attainment of legitimate aims. In light of the issues it is recommended that a
comprehensive 'code of practice' shall be drafted and strictly implemented in the organization. A
friendly approach shall be adopted towards the employee in order to keep them satisfied and
engaged in their work. A systematic approach of performance evaluation shall be installed.

TABLE OF CONTENTS
INTRODUCTION...........................................................................................................................1
a. Legal Risks ABC Ltd. may face in consequence to the course of action...........................1
b. Defences Available with ABC Ltd.....................................................................................2
c. Employment Relations Issues.............................................................................................4
CONCLUSION................................................................................................................................5
RECOMMENDATIONS.................................................................................................................6
REFERENCES................................................................................................................................7
BIBLIOGRAPHY............................................................................................................................8

INTRODUCTION
The recruitment and selection process occupies a highly critical position in the operations
of any organization. This is the process with the assistance of which corporates are enabled to
absorb one of the most crucial resources in the form of their employees. Thus, in essence
recruitment is the process to identify the requirement to hire employees and then calling
applications in respect to them. Once the requisite number of applications are received, a
structured selection process commences, which chooses the candidates suitable for the job.
However, it is imperative for the concerned management to assure compliance by all the
applicable legislation, at each and every step of the entire process (Barnard, 2012). It has been
observed that this process is prone to enforcement of Equality Act of the nation, which in
essence prohibits practising discrimination in any form. Apart from this statute, this process is
subject to Human Rights Law, employment contract law, health and Safety law and such other
statutes which govern the employee relations in an organization.
a. Legal Risks ABC Ltd. may face in consequence to the course of action
ABC Ltd in the present case has decided to undertake internal recruitment for the position
of Sales Director in the company. In pursuance to the same, name of four candidates have been
shortlisted. This list has been prepared on the basis of intentions communicated by various
employees of the company. Moreover, it is important to state that the decision of undertaking an
internal recruitment is completely within the facets of law and is supported by the opinion of the
court in Archibad v. Fife Council (2004).
The first candidate being considered by management in the present case is of Joan
Keenan, who is a recent recruit and one of the two female members of sales team. The
application of Joan has been out rightly rejected by the management on basis of the fact that she
is a young women (Selwyn and Emir, 2014). In the case of James v. MSC Cruises it was held by
the court that indirect or direct discrimination on the basis of gender is a violation of Equality
Act 2010. In other words, every employer is required to give equal opportunities to the
employees under consideration. Thus, in this instance ABC Ltd may face legal liability under
Equality Act 2010 on the basis of protected characteristic of sex discrimination. It is important to
note that the decision in respect to the concerned candidate has completely ignored the
competence level she has reflected over the short time of her association (Beecroft, 2011).
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Therefore, the course of action undertaken by the company in respect to Joan may attract a
liability under Equality Act 2010.
The second candidate under consideration of the company was Aldo Viscida, who
migrated from Milan in the year 1980. The employee has reflected brilliance in his work and is a
recipient of various awards and prizes for his excellence in the work of sales. However, it is
ascertained by the management that the written English of Aldo is poor and thus, he may not be
able to effectively communicate with clients or formulate reports. In these circumstances the
potential point of issue which be raised is in relation to the fact of him being a migrant and thus,
not fluent with English. It may be alleged that this is a form of racial discrimination which has
been undertaken by the management. Moreover, the reason behind poor English is Aldo being a
migrant from Milan (Marinescu, 2011). Therefore, on the basis of these facts indirect
discrimination can be claimed against the management. However, the claim may not be sustained
as Also shall not be able to effectively fulfil his responsibilities of a Sales Director as English is
the primary language of communication.
A claim of direct discrimination on the basis of age may be imposed on the management
of ABC Ltd., as the decision to reject application of David Constant was predominantly based on
age. Considering the decision of court in Prigge and others v. Deutsche Lufthansa AG (2011), it
can be stated that it is important to consider proportionality of the age with work profile which is
required to be undertaken (Taylor and Emir, 2015). In the instant case David is well experienced
and at the age of 61 also is willing to work. Moreover, there is no question on the capability with
which he undertakes his work. However, this claim may be rejected on the basis of fact that
David's wife is not well and in pursuance to the same he may not be able to justify his work.
Lastly, the acceptance of application of Mike Replica may be challenged on the basis of
favouritism or nepotism. In the instance case it can alleged that Mike is personally related to the
Finance Director as well as in is good terms with the Chief Executive of company, and therefore
his application has been chosen over the applications of more deserving candidate. However, this
claim may not be sustained as the actual decision to choose her for the position was undertaken
on the basis his capabilities.
b. Defences Available with ABC Ltd
The potential claims which may be raised against ABC Ltd are all arising from the
Equality Act 2010. In pursuance to the same it shall be noted that discrimination claims against
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the employer may be avoided in the instance the concerned company can establish that all the
reasonable steps were undertaken for prevention of such an act. This is a statutory defence which
shall be available to all the employers who are facing these form of claims (Countouris, 2016).
However, in order validate the defence it is imperative for the companies to establish that all the
suitable and appropriate actions were undertaken for ensuring provision of equal; opportunities
to all the employees. In the instant case, if the employer raises this statutory defence of 'all
reasonable steps', then it is required to establish that the recruitment and selection policy
followed by the management specifically prohibits discrimination. Moreover, they shall also
establish that recruitment or selection of candidates are undertaken only on the basis of
competencies and capabilities.
Another defence which can be raised by the company is in relation to 'Objective
Justification' Defence. In pursuance to this defence it shall be established by the company that
the action under consideration was proportionate in nature and was undertaken only for
attainment of legitimate aims. In the case of Akerman Livingstone v. Aster Communities Ltd
(2015) it was opined by the court that the defence of objective justification is primarily available
in cases of indirect discrimination, wherein the purported unfavourable treatment can be justified
on the basis of being a proportionate action for achieving justified aims (Inghammar, 2010).
Moreover, in addition it shall also be established by the company that the alleged course of
action was the only possible consequence for achieving the legitimate aim. In addition, it shall
also be established that course of action was completely balanced in nature, and the legitimate
aim was also important to be achieved.
In the instant case, ABC Ltd. shall at the foremost establish that their legitimate aim was
to select a person who shall be able to accomplish the responsibilities of Sales Director in an
effective manner. Therefore, in pursuance to the same all the decisions of rejecting or accepting
the application for the concerned position has been undertaken considering the suitability for all
the roles and responsibilities. The first claim is in relation to Sex discrimination for rejection of
application of Joan Keenan. In this case it can be alleged by the company that though the
candidate has been performing well in her job, she still lacks experience to handle the position of
Sales Director (Barry and Wilkinson, 2011). Moreover, some of the roles played by the former
director included entertainment in late night parties which would not have been possible for
Joan. Thus, this was a justified action for accomplishment of legitimate aim of recruiting an
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appropriate person for the position. However, this case could be rebutted on the instance that the
rejection of application was made merely on the basis of gender, while other considerations were
only noticed after the finally deciding the rejection.
Further, in case of Aldo the indirect discrimination could be challenged on the basis of
fact that the migrant status of Aldo was never considered by the recruitment team and the reason
of rejection of this application was only his English. It shall be clearly established that the
position required the person to write proper English and be able to effectively communicate with
all the stakeholders. This was also the legitimate aim for the course of action and rejection was
the only and necessary option available. Followed by the same, it shall be argued in the case of
David Constant that rejection of this application was not merely on the basis of his age, rather it
was on the fact that he may soon decide to resign the job, again leaving the position vacant. In
order to assure certainty the decision was undertaken (FBA, 2011). Lastly, the claim against
acceptance of Mike Replica shall not require the company to raise any form of defence as
favouritism is not an illegal form of discrimination until and unless it falls under any one of the
protected characteristics mentioned in Equality Act 2010. Therefore, the last claim against
company shall not be maintainable.
c. Employment Relations Issues
The modified policy of payments entirely on the basis of commission may not prove to
be highly beneficial for employment relations in the organization. With the execution of this
policy the primary intention of enhancing the performance of employees shall be completely
vitiated as they shall feel pressurized as their entire salary would be dependent on the
performance. The employees shall no more be able to feel secured or certain, and therefore the
company may not be able to retain the employees. The employee turnover shall be increased to
an extensive level, as the all the poorly performing employees shall be dismissed to be replaced
by other stronger employees (Honeyball, 2014). In consequence to the specific policies, the
employees shall never be motivated to perform in a better way, as they are not looking for only
monetary benefits. For the success of an organization it is imperative to keep the employees
motivated and engaged through incentives which shall be both monetary and otherwise.
Therefore, this form of autocratic approach of the management shall restrict the productivity of
employees and eventually push them out of the company. This may create a situation of conflicts
which may persist between the management and the employees.
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On the other hand, the policy of regular medical check-ups shall be taken as one of the
positive actions by the employees. Moreover, in the event employees are themselves able to
realize a positive change, then it shall enhance their relation with the management (King and et.
al., 2011). However, the probability of positive results of this policy is high only when it is
implemented in isolation. However, with execution of the above policies, this requirement shall
be perceived by the employees as imposition of restrictions and over-regulation of their personal
life. In addition, not every smoker would accept the persuasions to leave smoking in a positive
manner, rather may take it negatively in the form of a restriction. Therefore, overall execution of
the proposed policies shall hamper the employee relations of the company and may make a
deterring impact on the productivity of employees as well as the overall company.
In consequence to implementation of these strict policies, a sense of hostility shall be
developed among employees against the employer. The motivational and engagement levels
shall be extremely low (Linos, 2010). This shall be a clear violation of one of the most important
aspect of employee relation, which requires the employee to be treated as an asset. Moreover, it
also requires the company to place high value of the employees. Thus, in result a vacuum may be
created between the employees and management, with no effective communication being
undertaken. The employees are no more loyal to their work and to the management, thereby
increasing the possibility of errors in operations and conflict situations among different levels.
CONCLUSION
It can be inferred from the above discussion that the recruitment and selection policy of
ABC Ltd. is not efficient or strategic enough to make effective recruitment for the vacant
position. Thus, it is imperative for the concerned management to assure compliance by all the
applicable legislation in the entire process. The HR department plays a highly critical role in the
entire process of recruitment. The need to recruit for a position is ascertained by this teams, and
in pursuance to the same it shall be assured that a timely decision to commence the process shall
be undertaken. Moreover, while recruiting and selecting candidates it is essential to stay in
compliance with all the legal and ethical requirements. For instance in the case of ABC Ltd the
recruitment process was undertaken through an internal process, wherein the already existing
employees were required to communicate their interest for being appointed in the concerned
position. At this stage the selection committee shall assure that acceptance and rejection of an y
of the candidates does not in any form amount to a discriminatory act. All the protected
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characteristics enumerated in the Equality Act 2010 shall be effectively communicated to all the
members who are responsible for selecting the candidates.
RECOMMENDATIONS
Considering the current practices being undertaken by management of company as well
as the proposed policies, the following recommendations are being made for introducing
improvements in the operations of company:
 ABC Ltd shall develop and implement an effective recruitment and selection policy,
which clearly enumerates the elements which shall be considered by the selection
committee. This shall ensure a consistent approach of the company and also assure
avoidance of any form of legal or ethical liability. Thus, a comprehensive 'code of
practice' shall be drafted and strictly implemented in the organization.
 A friendly approach shall be adopted towards the employee in order to keep them
satisfied and engaged in their work. Moreover, an effective compensation and incentive
policy shall also be developed so as to ensure provision of high motivational level at the
end of employees. The payment system shall be crafted in such a manner that the
employees feel secured and certain in respect to the payments they shall receive at the
end of month (Barry and Wilkinson, 2011).
 A systematic approach of performance evaluation shall be installed to improve the
performance of low-performing employees, rather than dismissing them from job. This
shall ensure enhancement in their performance as well as low turnover rate.
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REFERENCES
Books and Journals
Barnard, C., 2012. EU employment law. Oxford University Press.
Barry, M. and Wilkinson, A. eds., 2011. Research handbook of comparative employment
relations. Edward Elgar Publishing.
Beecroft, A., 2011. Report on employment law. UK Department for Business Innovation &
Skills.
Countouris, N., 2016. The changing law of the employment relationship: comparative analyses
in the European context. Routledge.
FBA, S. F., 2011. Discrimination law. OUP Oxford.
Honeyball, S., 2014. Honeyball and Bowers' Textbook on Employment Law. Oxford University
Press, USA.
Inghammar, A., 2010. The Employment Contract Revisited. Undocumented Migrant Workers
and the Intersection between International Standards, Immigration Policy and Employment
Law. European Journal of Migration and Law. 12 (2). pp. 193-214.
King, E. B. and et, al., 2011. Discrimination in the 21st century: Are science and the law
aligned?. Psychology, Public Policy, and Law. 17 (1). p. 54.
Linos, K., 2010. Path Dependence in Discrimination Law: Employment Cases in the United
States and the European Union. Yale J. Int'l L. 35. p. 115.
Marinescu, I., 2011. Are judges sensitive to economic conditions? Evidence from UK
employment tribunals. ILR Review. 64 (4). pp. 673-698.
Selwyn, N. M. and Emir, A., 2014. Selwyn's law of employment. Oxford University Press, USA.
Taylor, S. and Emir, A., 2015. Employment law: an introduction. Oxford University Press, USA.
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BIBLIOGRAPHY
http://www.acas.org.uk/index.aspx?articleid=4664
https://www.sheffield.ac.uk/hr/recruitment/guidance
http://www.employmentlaws.co.uk/
http://www.stammeringlaw.org.uk/discrimination/justification.htm
http://catalogue.pearsoned.co.uk/assets/hip/gb/uploads/M02_NAIR5417_04_SE_C02.pdf
https://www.theguardian.com/careers/discrimination-work-understanding-equality-act
http://www.employmentlawfirms.com/resources/employment/discrimination/laws-preventing-
favoritism-in-the-workplace
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