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BUSN7600 Business Law and Employment Rights

Published : 24-Sep,2021  |  Views : 10

Question:

Softy Furnishing Ltd (SF) is a small local firm which produces a number of decorative items for the home including cushions, curtains and bed linen. Hoping to bring its brand image up to date, the firm has just employed a new manager, Graham who is well qualified and has some great ideas about how the firm’s products can be recreated to bring a modern feel to the home and how working practices can be brought up to date.

Fatama has been a machinist at the firm for three years and has always enjoyed being allowed to plod along with her work, machining seams on cushions. Graham has brought in some new (very fast equipment) to speed up production but Fatama is refusing to use the machines as she says that as she was trained on more manual machines she should be allowed to continue to use them. Graham introduced training but Fatama did not attend saying she is happy to continue with what she is doing.

Graham also wants to make changes in the warehouse to create a more diverse workforce however when two well qualified women applied for jobs there, Graham was told by senior management not to employ them as it would be better if the firm continued to employ men only in the warehouse as bringing women in might upset the macho dynamics of the group. Joseph, who is a friend of one of the current employees and is homosexual, has also been refused a job at the firm for the same reason of upsetting the macho dynamics of the group.

Sidney also applied for a post in the warehouse however 15 years ago he was sentenced to 6 years in prison for drug smuggling and served 4 years. He has been told that because of his criminal record he will not be appointed. Meanwhile, Sabrina a 40 year old technician has worked for the firm for six years. It has come to light that she was sentenced to 9 weeks imprisonment for possession of cannabis when she was 20. She was rather embarrassed about this when she first applied for the job and so did not reveal it however she has now been told that the firm considers this a betrayal of trust and she has been dismissed for gross misconduct.

Sally who has been employed in the retail shop of the factory for three years was seen leaving the building at the end of her shift with a new cushion under her arm. She was immediately dismissed without pay for gross misconduct.

Graham is also having problems with Bill who, in Graham’s eyes is lazy. Bill has been employed with the firm since September 2016. It has been agreed by senior management that the firm cannot continue to employ staff who do not ‘pull their weight’ and Bill has now been dismissed.

Sylvia who is employed full time on the reception desk has just returned from maternity leave and is struggling to cope with working full time and being a new mother but her request to work part time has been refused.

1 Advise Fatama as to whether she is obliged to use the new equipment and explain the legal situation regarding Sidney and Sabrina

2. Consider the prospects of any claim that may be brought under the Equality Act 2010 regarding Joseph and the two women whose applications for employment were turned down.

Answer:

Fatama

1. Whether Fatama is obligated to do what the employer is asking her to do?  

Law – Under an employment contract, the terms and conditions of the agreement are the guiding principles. In such contracts, an employee’s roles must be clearly stated to ensure efficiency in performance of the duties. In most cases, employees report to supervisors who may exercise control depending on the role of the employee. To ignore reasonable instructions of the supervisor may amount to gross misconduct which is a breach of contractual duty that could repudiate the contract.

The employer under a contract of services has a duty to ensure that an employee is availed with all the necessary tools and machinery to carry out their duties as set out in their employment contract. The employer has a duty to ensure that professional training is made available to the employee on the handling of the tools and machinery. Where new equipment is acquired for purposes of optimizing output, an employee is under an implied duty to adapt to the working environment and thus learn the skills of operating the new equipment. To refuse to use the availed machinery can be grounds for dismissal. Termination of a contract of employment may be done mutually or by one party. The Employment Rights Act under section 98 gives grounds for termination by an employer. The fair grounds for termination are gross misconduct, redundancy, contravention of a statute and capability or qualification.

Under a contract for services, the worker’s contract with the firm does not fall within the ambit of a contract of services; it is not an employment contract and therefore the relationship between the parties is not one of employer - employee rather it takes a different form. This is a contractor – business relationship governed by a different set of rules.

Under the Common Law employment contract, there is an implied duty of cooperation. The duty of cooperation from the employer’s point of view is a wide-ranging and flexible concept. In the case of Cresswell v Board of Inland Revenue, for instance, employees were held to have an implied duty of working with the new technology that had been introduced, despite the adverse impacts of the same. In Sim V Rotherham MBC teachers were held to have an implied duty of covering for their absent colleagues. The plaintiff in the case of Pepper v Webb was held to be in breach of his implied duty under the employment contract for failure to obey the employer’s instructions.  

Application and Conclusion – Based on the law as enumerated above, Fatima is under an implied duty to use the novel equipment.   

Sidney

Whether the employer can refuse to employ Sidney because of the criminal record he has as a result of the sentencing and imprisonment he faced 15 years ago for drug smuggling.

Law – According to the provisions of Section 39 of the Equality Act, an employer is precluded from discrimination with respect to recruitment and employment. The Rehabilitation of Offenders Act 1974 contains provisions that protect the rights of ex-offenders. It protects offenders with spent convictions – the term spent refers to the ability of not declaring since a particular time has lapsed. The period of time depends on the severity of the sanctions. Once an offender spends a conviction, he is under no obligation to declare such in the case of applying for a job. The position of the law is that employees are protected from being excluded from employment on the grounds of conviction. Employers are precluded from occasioning prejudice on an individual on the grounds of a spent conviction. The case of Collier v Sunday Referee held that there is no implied duty on the part of an employer to provide work.

In addition to the above, it is important to note that convictions that have sentences of more than four years are not included under the Act. Furthermore, the Rehabilitation of Offenders Act 1974 (Exceptions Order) 1975 contains provisions with regard to circumstances where a conviction will not be considered as spent. The import of that law is that a conviction must be disclosed. Furthermore, custodial sentences that span the length of more than four years are not considered as spent sentences. This is the import of Legal Aid Sentencing and Punishment of Offenders Act 2012. It is important to state, in addition to the preceding, that the Rehabilitation of Offenders Act contains provisions that exempt certain professions from its provisions. For instance, national security jobs, legally protected professions, justice administration jobs and jobs requiring contact with vulnerable groups are job groups from which ex-offenders are exempted.  

Application – Sidney is protected by the provisions of the Equality Act above against discrimination during employment. Furthermore, the Rehabilitation of Offenders Act above protects Sidney’s rights as an ex-offender. Sidney is under no obligation to declare in his job application since he is protected by the law. The employer on the other hand is required by the law not to consider Sidney’s previous and spent conviction in his employment application. Further, Sidney was not applying for a position or employment in one of the professions exempted under the Rehabilitation of Offenders Act. Had Sidney been applying for a job in such a profession, the employer would have the legal right of refusing to employ him. However, it is noteworthy that there is no implied duty of an employer to provide work. Since Sidney was convicted and sentence for six years, he is not protected under the Rehabilitation of Offenders Act as one with a spent sentence. This is because a four year term does not have a rehabilitation period and therefore cannot be deemed as spent. Sidney, therefore, must disclose.

Conclusion – Accordingly, the employer has a legal obligation to grant Sidney employment without regard to his previous sentence and conviction. Hence, the employer cannot refuse to employ Sidney because of his previous conviction. However, in view of the fact that Sidney’s sentence was six years, his conviction is not spent and therefore, has an obligation to disclose. The employer has the legal avenue of refusing to employ Sidney.  

Sabrina

Issue – Whether Sabrina was required to disclose to her employer about her criminal record? Whether was the employer right to dismiss her for lack of disclosure? Whether Sabrina can bring a claim against the employer after being dismissed for gross misconduct? What kind of claim would it be?

Law – Under the provisions of the Rehabilitation of Offenders Act 1974 a person who has spent a conviction is under no obligation or requirement of disclosing a previous conviction. A conviction becomes spent after a certain length of time elapses, which time is referred to a rehabilitation period. The length of that period depends upon the severity of the offence and this rule only applies for convictions of less than a year. For a custodial sentence of between 0-6 months, the rehabilitation period is two years. Section 4 (3) (b) of the Rehabilitation of Offenders Act precludes an employer from unfairly dismissing or treting less favourably, an employee with a spent conviction. Under the Employment Rights Act 1996, an employee has the right against unfair dismissal by an employer. The individual must be an employee with more than two years of continual employment and must prove dismissal. In the case of Hendry v Scottish Liberal Club and Property Guards Ltd v Taylor and Kershaw the court held that dismissal for failure to disclose a spent conviction was unfair and against the law. In the former case, the employee was dismissed for failing to disclose a spent conviction that had happened many years before that time. In the latter case, the employee defendant had been dismissed for failing to disclose a previous spent conviction for minor offences.  

Section 94 (1) of the Employment Rights Act contains the substantive right against unfair dismissal by an employer. According to section 98 of the ERA 1996, gross misconduct is one of the grounds an employer may rely on for dismissal. There must be an investigation into the dismissal and must be predicated upon ‘honest belief’. Lack of disclosure does not form a part of the grounds for dismissal under the Act. An employee dismissed for gross misconduct can bring a claim for Unfair Dismissal against an employer.  

There are three stages to bringing a claim for unfair dismissal. The first is establishing the right under section 94 (1) of the ERA 1996. Stage two is establishing the reason for dismissal and the third stage has to do with the Tribunal establishing whether the employer acted reasonably. The Tribunal considers whether the employer acted reasonably.  

Application – Sabrina’s conviction is spent since it was between 0-6 months and two years have elapsed after serving the sentence and this makes the rehabilitation period. As such, she is under no obligation to disclose the same.  Sabrina is entitled to bringing a claim against the employer for Unfair Dismissal.

Conclusion – The employer was wrong in dismissing Sabrina for not disclosing her previous conviction since it was spent under the law. Sabrina has a right against the employer for unfair dismissal.

The Two Women

2. Whether, with respect to the Equality Act 2010, the senior management treated them less favourably because they were women?

Law - Section 11 of the Equality Act 2010 identifies sex as a protected characteristic. The Act generally prohibits against direct and indirect discrimination, harassment and victimisation. Section 13 of the Act provides for Direct Discrimination and is understood as treating a person less favourably compared to how the one would treat other persons because of a protected characteristic. Section 64 of the Act provides that sections 66-70 of the Act apply where a person is employed in work that another of the other sex can do. The Act allows for employers in certain circumstances to restrict jobs for certain sexes.

Additionally, section 111 of the Employment Rights Act prohibits discrimination of a third party with the instruction of one person to another. The Sex Discrimination Act 1975 prohibits discrimination against a woman for employment purposes either as an employee or applicant. The Employment Appeal Tribunal has also held that it is contrary to the law to discriminate against women in the case of Wylie v Dee & Co (Menswear) Ltd. 

Application – According to the provisions of the Act, the two women were treated less favourably because they were women. According to the definition of Direct Discrimination under the Act, the two women were treated less favourably because they were women. Furthermore, the instruction that Graham gave to the management to exclude the women from employment is treated as discrimination under the law.

Conclusion – The two women were treated less favourably since the senior management refused to grant them employment because they want to retain men. Unless the employers can prove that the work is one that allows for precluding women, then they are treating the two women less favourably than men.

Joseph

Whether Joseph was treated less favourably because he is homosexual?

Law – Discrimination in private employment in the UK is expressly prohibited by law. Section 12 of the Equality Act 2010 provides for sexual orientation as a protected characteristic. It protects persons of the same and opposite sex. Direct discrimination under the Act is where a person is treated less favourably because of a protected characteristic compared to how they would treat another person. The European Court of Justice case of P. v S. held that discrimination based on transsexual grounds was precluded by the Equal Treatment Directive and that as such, so was discrimination on gay and lesbian grounds. Furthermore, the court in the case of Hall v Bull and Black v Wilkinson held that it was against the law to discriminate on homosexuality.

Application – Under the provisions of the law above, Joseph is protected under section 12 as a homosexual and is also protected against direct discrimination.

Conclusion:

Therefore, Joseph was treated less favourably and as a homosexual, is protected from discrimination.

Bibliography:

Statutes

Employment Rights Act 1996 (UK)

Equal Treatment Directive Council Directive 76/207/EEC on the Implementation of the Principle of Equal Treatment for Men and Women as Regards Access to Employment, Vocational Training and Promotion, and Working Conditions, 1976 O.J

Equality Act 2010 (UK)

Legal Aid Sentencing and Punishment of Offenders Act 2012 

Rehabilitation of Offenders Act 1974 (UK)

Sex Discrimination Act 1975 (Eng)

Cases

Black v Wilkinson [2013] 1 W.L.R. 2490

British Home Stores Ltd v Burchell [1978] ICR 303

Collier v Sunday Referee [1940] KB 647.

Cresswell v Board of Inland Revenue [1984] ICR 508

Hall v Bull [2014] H.R.L.R. 4

Hendry v Scottish Liberal Club [1997] I.R.L.R. 5

  1. v S. Case C-13/94, 1996E.C.R. 1-2143.

Property Guards Ltd v Taylor and Kershaw [1982] I.R.L.R. 175

Sim V Rotherham MBC [1986] lCR 897

Wylie v Dee & Co (Menswear) Ltd [1978], I.R.L.R. 103

Other Sources

Cohen, Ronnie, Shannon O'Byrne, and Patricia Maxwell. “Employment discrimination based on sexual orientation: The American, Canadian and UK responses.” Law & Ineq. 17 (1999) 1. 

Deakin, Simon F., and Gillian S. Morris. Labour law. (Hart publishing, 2012) 104.

Deakin, Simon. “The contract of employment: a study in legal evolution.” Historical Studies in Industrial Relations 11 (2001) 1-36.

Loucks, Nancy, Olwen Lyner, and Tom Sullivan. “The employment of people with criminal records in the European Union.” European Journal on Criminal Policy and Research 6, no. 2 (1998): 195-210. 

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