Employment Law Essay
Early on this twelvemonth. there are studies that the figure of employees naming in sick has risen to reeling degrees. Harmonizing to an absence direction company. there are about 3. 6 million employees who called in sick the first hebdomad of January ( Pitcher. 2008 ) . The United Kingdom ranked every bit 2nd as holding the most figure of employees with long term illness in a study conducted by the European Community ( Tehrani and Rainbird. 2005 ) .
The degree of absence for UK was 27. 2 % as against an norm of 16. % of the European Union ( Tehrani and Rainbird. 2005 ) . An approximative figure of 14. 1 million yearss ‘were lost to emphasize and anxiety in 2001” ( Tehrani and Rainbird. 2005 ) . Absences due to emphasize and mental jobs significantly affect both the employer and the employees. This affair seemingly has been taken for granted and unaddressed for sometime until the passage of the Disability Discrimination Act 1995 ( DDA ) . Employment Act 2002. Employment Rights Act 1996. and the Health and Safety at Work etc Act 1974.
This paper shall demo the mode by which the pertinent commissariats of these pieces of statute law are applied to a conjectural instance and it shall besides seek to place and explicate the redresss of an employee in instance of misdemeanor of the commissariats. Disability—Sickness Absence The Disability Discrimination Act 1995 defines disablement as one holding a ‘physical or mental damage which has a significant and long-run inauspicious consequence on his ability to transport out normal daily activities’ ( Section 1 ( 1 ) . Part 1. DDA 1995 ) .
The Industrial Tribunal has applied the definition to the different instances brought before it. For case. in the instance of Greenwood v. United Tiles Limited ; the employee concerned was enduring from diabetes and was held to be disabled by the Tribunal ( Greenwood v. United Tiles Limited 1101067/97/C ) . In the instance of O’Neil v Symm & A ; Company Limited. the Tribunal considered ME or chronic weariness syndrome as a disablement ( O’Neil v Symm & A ; Company Limited. 2700054/97 ) .
Even abdominal strivings which had no medical diagnosing with regard to its beginning was declared as a disablement by the Tribunal in the instance of Howden v Capital Copiers ( Edinburgh ) Limited ( 400005/97 ) ( Thompsons Solicitors web site. 2007 ) . Anent mental disablement. Walton v LI Group Limited instance involved an employee who had larning troubles. The Tribunal ruled that the employee is considered handicapped under the DDA establishing its decision on the testimonial grounds of the employee’s parents and the fact that the employee was having disablement life allowance ( Walton v LI Group Limited. 1600562/97 ) .
The increased consciousness for mental wellness and issues associated with it has accelerated in clip. clinical depression is in fact already considered as a disablement. Clinical depression is a ‘common temper upset in psychological science and psychopathology in which a person’s enjoyment of life and ability to work socially and in daily affairs is disrupted by intense unhappiness. melancholia. numbness or despair’ ( Farlex Free Dictionary web site. n. d. ) .
In the recent appealed instance of O’Hanlon V Commissioners for HM Revenue & A ; Customs. the Employment Appeal Tribunal ruled that clinical depression is considered a disablement and hence falls within the coverage of the DDA 1995 [ O’Hanlon V Commissioners for HM Revenue & A ; Customs ( 2007 ) EWCA Civ 283 ] . Using the above discussed legal rules to the given conjectural instance. Vangeer has been diagnosed to be enduring from clinical depression. This was brought approximately by the incident when she by chance pricked herself with a acerate leaf which she picked up while cleaning a coach in the terminal of her employer.
This caused panic onslaughts and anxiousness and for which she was given a twelvemonth off from work. At this occasion. it is of import to emphasize that the Health and Safety at Work etc Act 1974 requires the employers to guarantee the wellness and safety of its employees in the topographic point of work. Towards its realisation. the jurisprudence imposes upon the employer the responsibility to do ‘the proviso and care of works and systems of work that are. so far as is moderately operable. safe and without hazards to health’ ( Section 2 ( 2 ) ( a ) . HSWA 1974 ) .
This means that Snail Pace Bus Company should hold provided a system of work including protective cogwheel for those who clean their coachs ( Health Safety Executive. 2006 ) . In add-on. the employer is besides supposed to take steps to protect their employee who may return to work sing that there is more likeliness that the employee may be weak because of the hurt or disablement ( Health Safety Executive. 2006 ) . Vangeer went on illness absence for about a twelvemonth. Sickness absence may be short term or long term.
A long term illness absence connotes serious medical grounds such as in the instance of Vangeer. Long-run absence is ‘usually defined as a period of absence in surplus of two weeks’ ( Corcoran. 2006 ) . When she returned for work. a new squad leader made prejudiced comments about her race. In hindsight. this may be considered as a misdemeanor of the Race Relations Act 1976. It may be shown that there is direct favoritism of Vangeer because she is black such as when she is treated less favorably than another ( Thompsons Solicitors. n. d. ) .
Furthermore. it may be shown that there is some signifier of torment under the Race Relations Act 1976 as amended by the New Regulations of 2003 ( Thompsons Solicitors. n. d. ) . Harassment is wide as to include ‘abusive linguistic communication. inordinate monitoring of work. inordinate unfavorable judgment of someone’s work etc. ’ ( Thompsons Solicitors. n. d. ) . It may be claimed that Vangeer suffered by because she was degraded. intimidated and her self-respect violated. The misdemeanor of her self-respect is subjective and the Tribunal would necessitate to govern utilizing the ‘reasonableness’ criterion ( Thompsons Solicitors. n. vitamin D.
In this instance. the consequence of Bob’s behavior has caused Vangeer to travel on illness absence for three hebdomads more based on the recommendation of her head-shrinker. Her transportation to another squad was besides suggested. Even before the period of illness absence has lapsed. Snail Pace Bus Company was bought by Slow Coach Ltd. and Vangeer was called to a meeting about her absence. Thereafter. she was dismissed from her employment with wage. Her dismissal is illegal. ‘In relation to long-run sickness absence. the employer who dismisses an employee faces three possible legal risks’ ( Lemon & A ; Co. 2008 ) .
Vangeer may register for a claim for unjust dismissal. for disablement favoritism and for misdemeanor of her contract of employment. It is self-evident that there exists between the employer and the employee. a contract of employment. It is an understanding whereby the rights and duties of both the employee and the employer are specified ( Direct. Gov web site. 2008 ) . When the employee accepts employment. there is an automatic contract of employment that is created irrespective of whether this has been reduced into authorship ( Direct.
Gov web site. 2008 ) . By and large. employment contracts contain the undermentioned clauses: ‘commencement. term. occupation rubric and responsibilities. topographic point of work. hours of work. wage. holiday entitlement. pension. sickness absence. rational belongings. confidentiality. expiration disciplinary. dismissal and grudge processs. and corporate agreements’ ( Clickdocs web site. n. d. ) . The footings of employment in regard of hours of work. wage. expiration of employment and other benefits are provided by the legislative acts.
This being the instance. the employer is mandated to follow with the commissariats of the legislative acts. For case. dismissal processs should be observed. In the instant instance. Vangeer was invited to a meeting to discourse her absence and after a twenty-four hours she was dismissed from employment with wage. The Employment Act 2002. Separate 3. Section 30 ( 1 ) provides that. ‘Every contract of employment shall hold consequence to necessitate the employer and employee to follow. in relation to any affair to which a statutory process applies. with the demands of the procedure’ ( EA 2002 ) .
The jurisprudence requires that the employer observe the process in instances of dismissal as provided for under subdivision 29. Agenda 2 Statutory Dispute Resolution Procedures. Chapter 1 and 2. Well. the employer is required by jurisprudence to set into composing the fortunes and Acts of the Apostless of the employee which he led him to originate disciplinary or dismissal stairss and ask for him to discourse it in a meeting. The employee must hold notice and sensible chance to be apprised of the same. After the meeting. the employer must inform the employee of his determination and inform him of his right to appeal.
Should the employee opt for an entreaty. another meeting should be scheduled before the dismissal or the disciplinary punishment shall hold been effectual ( Section 29. Agenda 2. Chapter 1. EA 2002 ) . In the instant instance. Vangeer seemingly may hold been given an unfairly short notice and was non informed of her right of entreaty if she was non satisfied with the determination. In retrospect. the legal power over unlawful dismissal instances were lodged in tribunals until 1994 when legal power was given to the Employment Tribunals which were authorised to allow merely up to GBP25. 000 ( British Employment web site. 2007 ) .
A contrary regulation is observed with regard to unjust dismissals and favoritism instances. where the tribunals can present greater sums of pecuniary amendss. Unlawful dismissal consequences when employer fails to give the employee notice in conformity with the employment contract and without appropriate wage ( British Employment web site. 2007 ) . It has been observed though that it is better for the ‘employee to action if the contract provides a reasonably long notice period’ ( British Employment web site. 2007 ) .
Monetary amendss in these instances are computed based on the sum of loss in footings of compensation and other benefits. Unfair dismissal occurs when the employee is terminated from employment and the employer in making so had no valid and justifiable ground ( Direct. gov web site. 2008 ) . The Employment Rights Act 1996. specifically Part X sections 111 to 132 provide for the redresss in instance of unjust dismissal. In a nutshell. there are three options: an order for reinstatement. an order for re-engagement or an order for compensation.
Reinstatement is when the Tribunal orders the employer to set the employee back to work with the same place and assigned undertakings. There is re-engagement when the employee is placed back to work with a new station and undertakings but under the same employer ( ( British Employment web site. 2007 ) . In instances where the Tribunal issues an order for reinstatement or re-engagement. it can non besides order compensation [ Wilson ( HM Inspector of Taxes ) v Clayton ( 2003 ) EWCA Civ 1657 ] . In the instant instance. Vangeer was unlawfully dismissed because of her long absence.
The Employment Rights Act 1996 provide for the employer’s duties in instance illness absence and dismissal are due to ill-health ( Mace & A ; Jones web site. 2007 ) . Bad wellness may be considered a good footing for dismissal of an employee because it affects the ability and capacity of the employee to execute his assigned responsibilities and undertakings. The jurisprudence mandates that in order for a dismissal based on ill-health can be considered as just. the employer must detect and follow with the legal demands ( Mace & A ; Jones web site. 2007 ) .
The employee must be given the sensible chance to retrieve and return to work before they can be dismissed’ ( Lemon & A ; Co. web site. 2008 ) . In the instant instance. Snail Pace Bus Company gave Vangeer about a twelvemonth to retrieve from her clinical depression. A return to work programme was drawn up for her. Her backsliding was instigated by her new director. She was given a three hebdomad off from work and before the oversight of that clip she was dismissed after the treatment with Slow Coach Ltd. Vangeer seemingly was non given a sensible chance to even utilize her three hebdomad off when in fact. the backsliding was caused by direction.
However. it should be pointed out that non in all instances shall the employer be apt even if he partially or entirely was responsible for the incapacity of the employee. In the instance of McAdie v Royal Bank of Scotland [ 2007 ] EWCA Civ 806. the Employment Appeal Tribunal reversed the determination of the Employment Tribunal when it ruled that the dismissal was justified even if the employer. partially or entirely caused the employee’s incapacity because based on the medical grounds obtained ‘there was no chance of the employee returning to work’ [ McAdie v Royal Bank of Scotland ( 2007 ) EWCA Civ 806 ] .
Another demand would be is for the employer to seek grounds of the medical position of the unwellness of the employee. The employer must bespeak for medical studies from the employee’s physician upon the mandate of the former ( Lemon & A ; Co. web site. 2008 ) . The employer may besides bespeak for the scrutiny of the employee by the employer’s ain doctor. The meeting should be for intents of measuring the current medical province. the bing medical advice and medical grounds. In the instance of Vangeer. Slow Coach Ltd. ailed to bespeak the medical studies from her doctor.
Furthermore. the employee must be consulted through a series of meetings for intents of researching ways and issues for alternate options and sensible accommodations ( Lemon & A ; Co. web site. 2008 ) . Albeit. there is one meeting conducted with Vangeer. no thorough treatment seemed to hold been made. Finally. ‘The employer must see the possibility of doing accommodations to the working environment in order to allow the employee to return to work’ ( Lemon & A ; Co. eb site. 2008 ) .
When Vangeer was ill the first clip. the employer made a programme which allowed her to get down work tardily and travel home early. However in the instance of backsliding. the suggestion that she be re-assigned to a different squad was non deliberated upon and carried out by Slow Coach Ltd. It is the duty of the employer to seek and accept suggestions from the employee on how she can work when she returns.
In a ailment for unjust dismissal. the Employment Tribunal shall take the undermentioned factors into consideration: ‘nature of the employee’s unwellness. the likely continuance of the unwellness. the nature of the occupation. the demands of the employer. the employee’s length of service. the type ( and sum ) of ill wage paid to the employee and alternate employment’ ( Lemon & A ; Co. web site. 2008 ) . The most of import factor that will be considered is whether the employer took steps in garnering information and determining medical studies from which he would establish a just and sensible decision and determination.
There must be recent. comprehensive and competent medical findings ( Direct. gov web site. 2008 ) . He must besides follow with the processs in disregarding an employee in conformity with the Employment Act 2002 and the Dispute Regulations 2004 ( Direct. gov web site. 2008 ) . Failure to follow the “statutory minimal dismissal and disciplinary procedure” shall do him apt to ‘a minimal basic award of 4 hebdomads wage. Furthermore. any compensation awarded by an Employment Tribunal may increase by 10-50 % ’ ( Direct. gov web site. 2008 ) . There is no differentiation between sickness absence and disablement.
In the instance of Clark V Novacold ( 18901661/97 ) ‘the Industrial Tribunal concluded that there should be no differentiation between the two. and dismissal for sickness absence does in fact relate to the disablement and consequently is leading facie unlawful’ ( Thompsons Solicitors web site. 1997 ) . Harmonizing to Solicitor Michael Corcoran. if the disablement is the cause of the long term illness absence and the employee was in fact dismissed. such dismissal is equivalent to favoritism unless it is shown that dismissal is justifiable ( Corcoran. 2006 ) .
The deficiency of cognition of Slow Coach Ltd. may hold on the disablement would be irrelevant and immaterial to the issue of whether Vangeer was treated less favorably ( Corcoran. 2006 ) . Under Section 20 of the Discrimination Disability Act 1995. direct favoritism is committed when the employee is ‘treated less favourably’ than another non enduring from such disablement and that such intervention is by ground of the employee’s disablement ( DDA 2005 ) .
Furthermore. the employer shall besides be apt if he failed to do sensible accommodations so that the handicapped employee can go on his or her employment ( HSE. n. d. ) . The jurisprudence requires that the employer ‘go an excess mile’ for the handicapped employee. albeit the jurisprudence does non set parametric quantities of its extent. However. instance jurisprudence has laid down legal rules based on each of the precedent-setting instance ( HSE. n. d. ) .