Employment Law Report: Legal Risks, Discrimination, and HRM

This report provides a comprehensive overview of employment law in the United Kingdom, analyzing key aspects such as contracts of employment, sources of employment law (including European Law, Common Law, and legislation), and the legal implications of various employment scenarios. It delv...Read More

Running head: EMPLOYMENT LAW
Employment law
Name of the Student
Name of the University
Author Note

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Executive Summary
The paper provides an overview of employment law operating in the United Kingdom. The paper
sheds light upon provisions relating to contract of employment and their effects. The sources of
employment law in UK are also provided through the paper. There are a few situations which
describes how employment law when applied on the situation effects the position of the
employer and the employee. The paper provides when wrongful or unfair dismissal may take
place of employment and what are the consequences of such actions. The paper also provides a
discussion on TUPE and discrimination legislations operating in UK. Good practices for future
HRM are also provided through the paper.

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Table of Contents
Introduction......................................................................................................................................3
Task 1...............................................................................................................................................3
Task 2...............................................................................................................................................5
Task 3...............................................................................................................................................7
Task 4...............................................................................................................................................8
Conclusion.....................................................................................................................................10
Recommendations..........................................................................................................................10
References......................................................................................................................................12

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Introduction
The contract of employment is the document through which the relationship between an
employer and an employee is governed. A contract is a legal document the terms of which are
binding upon the parties to it. In the same way in an employment contract the terms of the
contract are binding on the employer and the employer and where such terms are breached a
legal claim may arise. An employer contract in the same way as a contract contains both express
and implied terms. The terms of the contract are subjected to the provisions of employment law.
In UK employment law is sourced from European Law provisions, Common Law and
legislation. A few legislations which have been passed in UK for governing the relationship
between the employee and the employer are as follows.
 National Minimum Wage Act 1998
 Working Time Regulations 1998
 The Employment Rights Act 1996
 Trade Union and Labour Relations (Consolidation) Act 1992
 Equality Act 2010
 Health and Safety at Work etc Act 1974
 Transfer of Undertakings (Protection of Employment) Regulations 2006
 Redundancy Payments Act 1965
Task 1
This section of the paper discusses the legal risks which have been identified in relation
to the Newcastle office.

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The primary legal risk which has been identified in relation to the scenario is that of
unfair or wrongful dismissal. Wrongful dismissal takes place when the way in which an
employee has been terminated is against the terms of the employment contract. According to
section 86 of the ERA it is the duty of the employer to provide the employee a notice period of a
week in case of a months’ work, two weeks where the work has been done for two years and
twelve weeks when the work is of more than 12 years. A wrongful dismissal therefore arises
when the employer fails to comply with the legal process of dismissing an employee.
In the case of Gunton v Richmond-Upon Thames LBC [1980] ICR 755 it had been held
by the court that where an employee has been dismissed without a proper disciplinary proceeding
he has the right to make a claim for the period he would have been employed if the disciplinary
proceeding was ensured.
A claim in relation to an unfair dismissal is brought under the provisions of section 94 to
134A of the ERA. The claim arises when the termination of the employee cannot be said to have
happened for reasons which are statutorily considered as fair.
In the case of British Home Stores Ltd v Burchell [1978] IRLR 379 it had been found by
the court that it is upon the employer to provide that the reason for which the employee has been
dismissed was fair. In this case a three stage test had been provided to determine that whether the
employer has unfairly dismissed the employer or not. Firstly was the belief of the employer in
relation to the occurrence of the misconduct was genuine. Secondly was there a reasonable
ground in relation to belief and thirdly was reasonable investigation was carried out by the
employer in relation to the situation.

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In the given situation a claim for unfair dismissal can be made by Colin. He may feel that
the ground on which he has been dismissed is unfair. It has been stated 98(1) of the ERA that
while dismissing an employee it is the duty of the employer to ensure that the element of fairness
has been included in the dismissal. He may claim that there have not been fair and sufficient
reasons which led to his dismissal which are required under the ERA section 98(4)
On the other hand the claim for unfair dismissal may also be brought by Julie. She may
make a claim that the employer is not providing her the right to practice her religion. The claim
may also be a claim for religious discrimination. An employer as per the provisions of the EA
does not have the right to discriminate with an employee because of one’s religion.
In the case of Ali a claim for both unfair and wrongful dismissal may take place. In this
case Ali can make a claim in relation to a wrongful dismissal because he has not been provided a
notice period. In addition he may claim that he has been dismissed unfairly by the employer as
the provisions of fairness.
Task 2
This section of the paper discusses the relative strengths and weaknesses of the claims
which have been discussed above.
The provisions of the ERA expressly deal with the situation of an unfair or wrongful
dismissal. The situation is also addressed by common law principles. In the given situation it has
been stated that Colin has been dismissed because of a misconduct which has been committed by
him in relation to the company. A strong basis for the claim can be in relation to unfairness as the
conduct was not done in the course of employment. Whether the dismissal would account to
unfair or not can be determined by the applications of the three stage test provided by the case of

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British Home Stores Ltd v Burchell. In the given situation it can be stated that the employer has a
belief that there was a genuine misconduct which has been made by Colin by defaming the
organization on social which has lead to significant damage of reputation. A reasonable ground
for the belief also existed as it was evident that the employee has expressed himself on social
media which is contrary to the fiduciary duty of mutual trust and confidence and ensuring the
interest of the employer owed by the employee. The employer also investigated into the matter
In the case of St Anne's Board Mill Co Ltd v Brien [1973] ICR 444 it had been held by
the court that whether the decision of termination was reasonable or not is analyzed be
comparing the reason with the decision of a reasonable employer in the same situation. A
reasonable employer in the same situation also would have dismissed Colin for the gross
misconduct committed by him.
A strong claim of discrimination based on religion can be made by Julia in the situation
as the employers are preventing her to express her religious belief. In the case of Begum v
Pedagogy Auras UK Ltd [2015] UKEAT it had been provided by the court that an employer
commits religious discrimination were the employee treated in an unfair manner because of any
religious policy. However in the case of Grainger plc v Nicholson [2010] IRLR 4 (EAT) it had
been stated by the court that a claim for discrimination can be dismissed where the act was in
relation to a genuine employment requirement. In the given situation there is a clear defense that
the reason why Julia is not allowed to wear the neckless is strictly for the safety of the patients
and not for any other reason. Thus the claim may be dismissed.
In the situation of Ali a clear claim for wrongful dismissal may arise. This is because it
the duty of the employer to provide notice period or a payment in lieu off notice to those

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employees who have been dismissed and have been working for more than a month. In the given
situation it is provided that Ali had been working with the organization for a period of nine
months and thus he was required to be provided a notice period by the employer. There is no
defense which is available for the employer in the given situation. The claim which Ali can make
is very strong through the application section 86 of the ERA. In addition reference requires of
Ali has been rejected by stating that he was not trust worth. In these circumstances equity may be
claimed by Ali against the unfair treatment by his ex employer.
Task 3
The principle that people have to be treated based on their character rather than other
irrelevant status for fostering social inclusions have been embodied in the Equality Act 2010.
There are nine special characteristics which are stated as special or protected characteristics by
the EA. These include sexual orientation, gender, religion, age, disability, marital status,
matrimonial status and race. The concept of direct discrimination takes place in situation where
employees are provided with less favorable treatment as they possess one of the above special
characteristics when compared to another person not having such characteristics in the same
situation as per section 13 of the EA. The employer has the right to prove before the court that
the unfavorable treatment is solely based on a pure occupational requirement. On the other hand
indirect discrimination takes place in situation where same rule has been applied for all but the
rule is derogative for a person having a protected characteristic and the rule is not objectively
justified. In the case of James v Eastleigh BC [1990] 2 AC 751 it had been ruled by the court that
the employer may be liable for a claim of discrimination even where there was no intention to
indulge in such actions. The test for determining discrimination is objective rather than
subjective. In the case of R (European Roma Rights Centre) v Immigration Officer at Prague

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Airport [2005] 2 WLR 1 it had been ruled by the court that merely the reason for the unfavorable
action being the special trait is enough for the discrimination. Thus in the given situation it is the
duty of Annabel to ensure that no employee working for the organization is subjected to a
unfavorable treatment because of their protected traits. Her organization may even be held liable
in the situation where the unfavorable treatment was unintentional.
In circumstances where the employer ensures that no discrimination takes place within
the work place a healthy working environment is created. Incorporating good HRM practices
enhances the satisfaction of the employee which results is stronger employment relation and
eventually better performance. In addition to direct and indirect discrimination it is also the duty
of Annabel to ensure that she makes reasonable adjustments for those employees who are
working with a disability. An employee who has disability has to be provided with “reasonable
adjustments” so that he can function properly and not subjected to any detriment. According to
section 20-22 of the EA it is accounts to discrimination where the employer fails to provide
reasonable adjustment to a disabled employee. It is also the duty of Carling UK Ltd to address
any situation of victimization and harassment within the work place the EA through section 26-
40 expressly prohibit harassment or victimization at the work place. The employer may be liable
for any victimization or harassment which has been done to an employee by another employee. It
would be deemed that the employer has intervened in the situation where the action has taken
place on two or more instances.
Task 4
The situation where the employer transfers the business to another employer dealt under
the provisions of Transfer of Undertakings (Protection of Employment) regulations (TUPE).

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TUPE is applicable on those employees who are working for business organizations in UK.
When TUPE is applicable the job of the employees are transferred to the new employer. There
may be an exception to this rule which is when the employees are made redundant or the
business has become insolvent. The terms and condition of the employment also transfers and
continuity in relation to employment is also maintained. Both business and service provisions
changes fall under TUPE. It is the obligation of the employer to consult and inform the
employees in relation to the business transfer. The employer has to notify the employees when
and why the transfer is taking place, how is the transfer going to affect them. Under the
provisions of the TUPE the new employer is the other party of the employment contracts of the
business and as a result undertakes all the previous terms and conditions of the contract of
employment. The new employer is also responsible for the actions of the previous employer. It is
the right of the employees to restrain from working for the new employer. In this situation no
notice is required and the employees merely resign without any redundancy pay. The previous
employer does not have the right to change the terms of employment contract merely to meet the
needs of the new company. In the case of Nokes v Doncaster Amalgamated Collieries Ltd [1940]
AC 1014 it had been held by the court that transfer of employment contract cannot be made
without taking consent of all the involved parties. The new employer cannot make the
employees redundant only because they have been transferred from a previous employer. In
situation where the employees can be made redundant have to be only in relation to technical,
organizational or economic reason. However in the case of Hollister v National Farmers’ Union
[1979] ICR 542 it had been held by the court that where the employee has not excepted the new
terms of the employment contract which are justified it results in a fair dismissal. A few proper
steps had been prescribed through the case of Williams v Compair Maxam Ltd [1982] ICR 156

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in relation to the employer. These include providing all possible warnings, consulting the union,
agreeing on objective criteria, following the criteria and checking whether alternative scope for
employment exists rather than dismissal. Thus while transferring the business to the new
employer it is the duty of Carling UK Ltd to take into consideration the provisions provided by
TUPE as well as common law in relation to redundancy.
Conclusion
Ensuring ethical and legal principles in employment relationship is significant for both
the employer and the employee. It has been seen in task one that the employers have to follow
the statutory procedure of dismissing an employee or that would be subjected to a risk of
wrongful dismissal. In the send task it is clear that procedural fairness has to be observed by the
employer while dismissing the employees or they may be a defendant to a claim from unfair
dismissal. The employers must also not discriminate with the employees based on their protected
traits or on any trait as per the third task. Finally employers have to abide by the provisions of
TUPE in relation to making employees redundant. The employer has the essential obligation of
following good practices in the process of recruitment and general governance. According to
Kornhauser (2014) inclusion of diversity within the workforce enhances the productivity of the
organization as employees get to learn more from different cultures. The employer must not
discriminate with the employees in the process of recruitment and selection as well as any other
sphere of employment. Other than for a pure business requirement discrimination not only
attracts legal liabilities but also degrades the working environment. The employers must also not
dismiss any employee without a reasonable cause or in an improper manner otherwise it would
result in unfair or wrongful dismissal.

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Recommendations
1. Carling UK Ltd must not indulge in any form of discrimination in the future in the
process of recruitment or any other sphere of employment to ensure a healthy work
culture.
2. Carling UK Ltd must enact procedures and policies in the future for enhancing the
performance of the organization and ensuring employee development.
3. The overall development must be the focus of Carling UK Ltd in the future such as
enhancing their work life balance so that employee performance is enhanced.
4. Carling UK Ltd must also not dismiss any employee in the future without a reasonable
cause or in an improper manner otherwise it would result in unfair or wrongful dismissal.

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References
Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery) (Religion or Belief
Discrimination) [2015] UKEAT
British Home Stores Ltd v Burchell [1978] IRLR 379
Employment Relation Act 1996
Equality Act 2010
Grainger plc v Nicholson [2010] IRLR 4 (EAT)
Gunton v Richmond-Upon Thames LBC [1980] ICR 755
Hollister v National Farmers’ Union [1979] ICR 542
James v Eastleigh BC [1990] 2 AC 751
Kornhauser, A., 2014. Psychology of labor management relations. LERA For Libraries.
Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014
R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2005] 2 WLR 1
St Anne's Board Mill Co Ltd v Brien [1973] ICR 444
St Anne's Board Mill Co Ltd v Brien [1973] ICR 444
Transfer of Undertakings (Protection of Employment) regulations (TUPE).
Williams v Compair Maxam Ltd [1982] ICR 156

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