7OS01 Advanced Employment Law in Practice | Example Answer

Table of Contents

Task One – Short Article (1100 words) 3

LO1  3

Case Law- Mrs. N Moustache vs. Chelsea and Westminster NHS Foundation Trust 3

Disability Discrimination  3

The Major Sources of Employment Law   4

Common Law   4

Statute  4

Links with Case Law   4

Legal Issues that arised from Disability Discrimination  5

An analysis of the main employment rights and relating to the points of law, how these have developed over time  5

The roles played by legal and quasi-legal institutions which administer and enforce employment law in the Case Law and Future  6

Case Law   6

Future  6

Task Two – Report (3060 words) 7

Identify and explain the legal risks and the best course of action to take in respect of  7

LO2: Sarah Briggs & Raj Rasul 7

LO3: Colin Tate, Ali Khan & Bob Mayo  9

LO4: Sarah Briggs & Ali Khan  11

Advise Ann Handy of the practical steps that need to be taken to ensure equality and performance are implemented /managed effectively at Care for all Ltd. 12

Equality  12

Performance  14

Reference list 16

Task One – Short Article (1200 words)

LO1

Case Law- Mrs. N Moustache vs. Chelsea and Westminster NHS Foundation Trust

In the case of the employment appeal tribunal of Mrs. N Moustache v Chelsea and Westminster NHS Foundation Trust, the claimant represented herself contending that the tribunal claiming discrimination against section 15 of the Equality Act 2010. Her claim was defended by the respondent saying that she was not considered disabled in the List of Issues. Her claimed document, however, was not considered by the tribunal before the final hearing that was conducted by remote means. In this case, the claim should have been considered by Tribunal and the Respondent from the information provided by the Claimant.  (Employment Cases Update, 2023). The Court of Appeal made the judgement that Mrs. N had provided sufficient information about her disability and was unfairly dismissed. Therefore, the court decided both the claims for disability discrimination and unfair dismissal to be remitted and should be settled by the two parties in the next 14 days (The Cout Of Appeal , 2023).

Disability Discrimination

The Claimant alleged age and disability discrimination entwined with harassment with respect to the events that preceded her employment termination. She also made allegations of discrimination arising with a second claim for disability and age discrimination. In this claim, she stated that she was unfairly dismissed because she was still on sick leaves and that she believed that it was caused by her employer. Moreover, her claim was dismissed as she appealed that her disability (mental impairment) discrimination had not been heard and the claim was resisted by the Foundation. However, the appeal was allowed by the ET stating that it should be clear to the ET and Respondent that the Claimant was asserting that there was a correlation between a potential disability such as mental health problems and stress, and their impact on her and her dismissal. She claimed to have faced unlawful dismissal on the grounds of disability discrimination where the failure to clarify the position was an error and the claims of her dismissal and discrimination were remitted (EMPLOYMENT APPEAL TRIBUNAL, 2022). The case suggests that disability discrimination claims are subject to tribunals and claims for unfair dismissal can lead to legislative penalties to the organisations.

The Major Sources of Employment Law

Generally, there are three major sources of employment law in the UK namely the Common Law, the Statute Law, and European Law of European Directive and the decisions of the European Court of Justice. However, upon the implementation of Brexit, European law is no longer sourced but it is expected that the UK will choose to preserve the legislation in Domestic Law sourced by Europe (England and Wales, 2017).

Common Law

Common Law is the contract of employment between the employees with their employers which binds an employment relationship on a legal basis. The contract of employment is usually recorded in written format on a contract paper under which certain rights of mandatory statutory employment are stipulated regardless of the contract as long as the employee is situated in the UK (England and Wales, 2017).

Statute

The main employment laws in the UK include the Health and Safety at Work Act 1974, Employment Tribunal Act 1996, the Data Protection Act 1998, National Minimum Wage Act 1998, the Employment Relations Act 1999, the Equality Act 2010, and the Employment Act 2002, along with other laws that protect the rights of both employees and employers apart from the terms in the contract. These laws are regulated by the UK government and are obligatory to comply with. The non-compliance of any of the regulations mandated by the government results in legal consequences such as lawsuits and employers are subjected to accountability and responsibility in compliance with these laws (England and Wales, 2017).

Links with Case Law

In the case of Mrs N Moustache v Chelsea and Westminster NHS Foundation Trust, the Claimant set out a summary of the events that occurred in the Claim Form under paragraph 8.2 where she stated that she was bullied by a staff member and had issued a grievance consequently. She had the right to issue a grievance because of her non-compliance with the worker`s protection law in the amendment of the Equality Act 2010 (Taylor and Emir, 2015). She also described anxiety and panic attacks that signed her off from work for a long period of time. Her claim of pay discrimination due to her age and disability went against equal opportunity obligation under the Equality Act 2010 (Taylor and Emir, 2015) These employment rights relate to the unfair dismissal protection and rights to fair pay which can be alleged for legal consequences in case of non-compliance, as Mrs. N Mustache did in her employment at the Trust. 

Legal Issues that raised from Disability Discrimination

The Trust was claimed to be at a failure to make reasonable adjustments. The Trust could make adjustments for Mrs N but decided not to hence the court decided to charge monetary penalties against the company. Moreover, the lawsuit resulted in reputational damage for the company, work disruptions. The breach of Disability Discrimination Act 1995, the plaintiff is entitling to settlements and compensation for their complaints and the organisation has to make necessary adjustments to avoid further legal consequences such as penalties and even temporary license terminations (Taylor and Emir, 2015).

An analysis of the main employment rights and relating to the points of law, how these have developed over time

The development of employment rights and the law has been shaped by major revolutionising historic events including the Industrial Revolution, the enactment of legislative pieces such as the Trade Dispute Act 1906 and Factory Act 1901, and the growth of trade unions (Adams, 2023). The rights have developed over time in the UK regarding employment legislation with the introduction of workers’ rights such as Health and Safety, minimum wages, paid leaves, maternity leaves, etc (Adams, 2023). For example, the government introduced the Equality Act and Workers Protection Rights in 2010 and made it mandatory for employers to publish pay gap statistics with employees over 250 in number (Atrey and Fredman, 2023). These legislative actions were developed and encouraged to monitor equality in the workplace.

The roles played by legal and quasi-legal institutions which administer and enforce employment law in the Case Law and Future

Case Law

 In this case, Mrs N Moustache was subjected to rights against the Equality Act where she called out a Tribunal. The Tribunal enforced the law and recorded reasons that were contained in an updated list of Issues by the Respondents. (William and Vandekerckhove, 2021). However, the Tribunal found that Mrs N was unfit to resume working in any capacity and no adjustments by the employers can help under justifications under the Overriding Objective Clause of the ET rules.

Future

In the future, Dismissals and Discrimination can be emphasised at the time of employment and orientation. Organisations should provide in-depth orientation and training for the employees for awareness and compliance with the statutory laws and their effects on misconduct. This can improve the organisational culture by avoiding grievances and will help in the reduction of conflicts and cases of discrimination and unlawful dismissal perception in employees (William and Vandekerckhove, 2021).

Task Two – Report (3200 words)

Identify and explain the legal risks and the best course of action to take in respect of:

LO2: Sarah Briggs & Raj Rasul

In Sarah Briggs’ case, she is shown inconsideration towards her pregnancy as she was denied of the promotion request and request for reducing her working hours. On top of that, her senior manager Alan has given her redundancy following a restructuring of the team. This leads to the risk of employee turnover and the management is going against the Equality Act 2010 for protection of the rights of maternal and paternal leaves. Since Sarah was also entitled to a promotion after joining back from her maternity leaves. There are risks of grievances and the perception of unfair treatment and is prone to claims against the Equality Act 2010.

Under the law, Sarah Briggs can claim for unfair dismissal, maternity discrimination or automatic unfair dismissal against Newcastle care home as they are not given her old job back. In the case of Sarah, Newcastle care home can be sued for maternity discrimination as Sarah is dimissed considering redundancy while she was on maternitiy leaves (maternityaction.org., 2013).  Considering the case of Sarah Briggs one case law can be considered i.e., “Mrs A Rodin v Dhillons Management Services Limited 2021” that discuss about the expensive and insensitive treatment of the employer towards and an employee on the maternity leave.  Mrs Rodin worked in company until her dismissal while on the maternity leaves. As she was informed that her company Dhillons Management Services was closing permanently but on her return she could be employed by the new organisation i.e., DMS1. On her return she was dismissed by new company even when employers were same. In that case Mrs Rodin filed the claim for the discrimination based on the maternity and pregnancy and unfair dismissail. Considering the same case, Sarah Briggs can also file the claim against Newcastle care home for her basic employement right. In that case judgment was made that Mrs Rodin was unfairly dismissed pursuant to the number 7 regulation of the “TUPE Regulations 2006” (“TUPE”). She was awarded with the compensatory award of £8976.89 and basic award of £480.7 (gov.uk, 2021).

In this case, Newcastle care home can face the serious legal risk such as claim by employee, non-compliance with the law and due to this they have to provide compensation money to the claimant; so they can also face non-monetary and monetary and losses. To avoid and handle the case of unfair dismissal Newcastle care home must follow the “Acas Code of Practice on disciplinary and grievance procedures” as it is the minimum which employers must follow. Other than this they should follow the redundancy process (ACAS, 2015).

In Raj Rasul’s case, there is a risk of claims of discrimination against protected characteristics such as health issues that have caused the detachment from his job. Since Raj has been struggling with his diabetes, he was not given enough attention or care by his managers in terms of his health conditions. Moreover, the manager gave him a warning for absence but Raj can claim for a grievance or tribunal that can cause financial loss to the company. On one hand, Raj was rightfully given a warning if there is a shortage of workforce and unreasonable holidays. However, since the manager failed to have a 1:1 conversation to discuss Raj’s health problems, he can claim discrimination against his disability to perform. Therefore, there is a risk of claims under the Equality Act 2010 in terms of discrimination of his physical capacity without proper evaluation and justification for his behaviour and detachment.

Raj’s absenteeism may be against the policy, but since he has been a productive employee, the organisation could give him special consideration by analysing and testing his physical and mental well-being. In Raj’s defence, he could provide evidence such as medical certificates and doctors’ prescriptions regarding his diabetes and insulin dependency and call for a formal meeting with his employers and the HR managers to explain and justify his health conditions to which he is entitled to according to the Health and Safety Act and Employ Rights Act. For example, in the case law of MetrolineTravel Ltd v Stoute UKEAT/0302/14/JOJ, the claimant was a bus driver who appealed that he faced discrimination due to his health condition because he suffered from Type 2 diabetes which was a breach under Equality Act 2010. As a result, the appeal was allowed and the claimant was ordered to pay the respondent’s appeal fee. Similarly, Care for All Ltd can avoid these kinds of allegations if they give Raj a chance to retrieve to work successfully through negotiations and considerations to mitigate the risk of discrimination claims.

By law, company have an obligation to must pay the statutory sick pay (SSP) to Raj Rasul wherever he is eligible of it. In other case if he is not eligible, he must be told about why in writing by his company (ACAS, 2022). Raj can claim the discrimination if he is being treated less favourably because of his health condition. The Equality Act 2010 also protects the employees against all types of indirect and direct discrimination. In the case of Raj, he is impacted on daily basis due to diabetes; therefore, diabetes can be categorised as the disability under this Act. Raj’s employers must help him by offering flexible pattern of working, enabling them to have more break to test blood, take or eat medicines as well as letting him attend his medical appointments. But, in this case, the employer is not making any adjustment to Raj’s condition, thus he can claim for the disability discrimination at work under the Equality Act 2010. In this case, employers have the legal obligation under the “1974 Health and Safety at Work Act” to also make “reasonable adjustments”, so that the employee can manage their diabetes or any other disability along with their job (Equality Act, 2010).

LO3: Colin Tate, Ali Khan & Bob Mayo

In Colin’s case, he is subjected to claims of defamation against him by his employers. Personal and professional life have become more entwined thanks to social media. Employers have the right to keep an eye on what their staff members are doing on social media, but they must do it in accordance with data privacy regulations. Online behaviours of employees can reflect damagingly on their employers, and using social media inappropriately can have serious repercussions, such as disciplinary action or even termination. However, employees who falsely identify themselves or their employer online may potentially be subject to legal repercussions that go against the Defamation Act 2013 in the UK law. An employee might be sued for defamation, for instance, if they post false claims about their employer or merchandise on social media like Collins did. Since Collins is a well-experienced and proven performer in the company, he can also claim discrimination against the Equality Act 2010 where he should be treated fairly and heard by his employers regarding his conflicts before taking matters outside the organisation. In conclusion, social media significantly affected UK employment law.

The best course of action for employers is to be conscious of the dangers and take action to guarantee adherence to all applicable rules and regulations. Employees must also be aware of how their internet behaviour may affect their employment. The best course of action would also be to communicate and acquaint the employees with policies and agreements regarding the disparaging remarks for the organisation after working hours. Moreover, Collins must be addressed in an informal discussion with his manager to seek an understanding of the grievances of Collins against the Care home. For example, in the case law of Crisp -v- Apple Retail (UK) Ltd, Mr. Crisp expressed his displeasure with the company`s treatment of him when they refused to support a move to the US and made disparaging remarks about Apple products. He claimed and brought up Article 8 and Article 10 problems. The court judged that Apple had not hacked into his Facebook account; rather, supervisors were made aware of the situation after a coworker shared the relevant details. The tribunal continued by stating that even if Article 8 had been invoked, Apple`s intervention was appropriate and reasonable under the circumstances in order to defend the company`s interests, particularly its reputation. The panel determined that Article 10 was in play, but that the interference was once again appropriate and authorised in order to uphold Apple`s reputation. The fact that Apple explicitly stated in its policies that employees should not review the company`s goods on personal websites and that doing so would result in disciplinary action was pertinent in this situation. By law, Care Home has the right to claim against Colin under the Defamation Act 2013 just like Apple did with Crisp. However, Colin is also entitled to disciplinary actions by Care Home because of his misconduct against the policy of sharing derogatory remarks about his organisation without first consulting the relevant people within the organisation for his complaints.

In Ali Khan’s case, there is a risk of claims against the Health and Safety Act to employers because of the deteriorating working conditions in the company that can lead to serious health risks. There is also a risk of claims of unfair dismissal for Ali as his alleged complaints about the health and safety standards in the organisation were not given importance and he was dismissed without a notice period or a proper investigation. For example, in the case law of Mr M Ham v Esl Bbsw Ltd where Mr Ham was employed by Esl Bbsw, a company that provides cleaning products for five months. Mr Ham was unfairly dismissed for raising health and safety concerns on 30^th March 2020. Mr Ham raised health and safety concerns when his manager had asked him to deliver some equipement from the school to her home. Mr Ham was anxious because the manager was self-isolating because of suspected covid of her daughter. When Mr Ham raised the issue and refrained from obliging, he was dismissed later that day. At the time the Prime Minister had just announced that employees should only attend work if essential. Relying on sections 100(c) and/or (e) of the ERA 1996, Mr Ham claimed that he had been automatically unfairly dismissed for raising health and safety concern which was approved by the court. Consequently, the respondent had to pay the claimant sum of £16,640 pertaining to the loss because of Mr Hams unemployment. Similarly, Ali Khan can also claim for health and safety concerns and automatic unfair dismissal. The best course of action, in this case, would be to vigilantly account for the health and safety conditions of the employees to make them feel safe and healthy in the organisation. Policies should be made to ensure the working conditions to be an employee-friendly to avoid health risks and grievances and turnovers of employees subsequently. [SM1] 

In Bob Mayo’s case, Bob is entitled to receiving his employment letter because she has been working for more than 5 months in the organization. However, there is a risk for claiming a breach of the Work Time Regulations Act which states that employees are required to work 48 hours a week, any time allotted less than the stipulated hours are considered part-time workers and must be compensated accordingly which Bob was not warned of or discussed with. For example, in the case law of Allard & Ors v Chief Constable of Devon & Cornwall Constabulary, The claimants were police handlers who managed police informants who claimed that they had been working overtime more than the required hours and had been recalled to their duties after working hours. After investigation, the findings dismissed the claim as it was under their contract to be recalled upon the needs. However, the court accepted the claim of the compensations of the time offs granted on offload days (Allard & Ors v Chief Constable of Devon & Cornwall Constabulary2014, 2014). Likewise, Care Home would be to apply working hours agreements in the employment contract and any changes prospected in the future before the contract is signed. Moreover, performance management needs to be done repeatedly for employees like Bob to monitor and address performances in order to mitigate the risks of future conflicts and mismanagement of employee performance and compensate them accordingly.

LO4: Sarah Briggs & Ali Khan

Both Sarah and Ali Khan are subject to claims of unfair dismissal. The health conditions of Sarah employees were neglected and not given proper consideration due to which there is a risk of discrimination against protected rights of fair treatment, physical and mental well-being, and inequality between deserving employees. In Ali’s case, as an employee he has full rights to safety and security in the organsiation or else he can claim for injuries and health and safety concerns in the organisation. The best course of action for Care Home will be to have a formal discussion about the needs of the employees for their job satisfaction and convenience that does not compromise or risk their health and productivity in the organisation.

Advise Ann Handy of the practical steps that need to be taken to ensure equality and performance are implemented /managed effectively at Care for all Ltd.

Ann should familiarise herself with the equality and performance management employment laws in order to effectively manage HR activities at Care for All Ltd. The following are the key recommendations for Ann to improve equality and performance in her organisation.

Equality

Employers are obligated by the Equality Act of 2010 to shield their employees from all forms of bullying, harassment, and discrimination at work. Nevertheless, we are aware that employment discrimination continues to be a serious issue in all business sectors (Adamson et al., 2020). The most frequent types of discrimination filed before UK employment tribunals are equal pay, age, disability, and sex, according to a study on workplace discrimination. According to employment law experts, workplace stress is increasing these claims as people are increasingly inclined to file lawsuits for mental health problems brought on by discrimination. It is obvious that discrimination at work should never be accepted (Adamson et al., 2020).

Firstly, Ann should identify & prevent unconscious bias. these need to be identified and recognised. We all have unintentional prejudices. Before they can be successfully avoided, these need to be identified and recognised. For example, to identify your personal prejudices, take an Implicit Association Test (IAT). Ann should pay close attention to bias involving the nine protected categories, as this constitutes discrimination such as disability, gender, age, gender identity, pregnancy, and race. Religion, marriage, etc (Olatokun, 2021).

All daily operations and employment-related choices such as hiring, training, promotion, work allocations, remuneration, etc. should be made equitably for all employees. People should be respected for their differences because varied workplaces provide better results backed by innovative solutions (Kloss, 2020). Moreover, any policies, regulations, or practises your company has in place that can disadvantage a specific group individual because of protected characteristics are considered indirect discrimination. For example, English proficiency is a requirement on a job description, which would instantly disqualify talented candidates who were educated abroad (Kloss, 2020).

Furthermore, make sure you have clear, objective criteria when hiring, training, and promoting people so that decisions are always based on merit and unaffected by bias. If a team, management, or business unit raises concerns, promote group decision-making or perform audits and performance reviews (Adamson et al., 2020).. In addition, it is important to be proactive in being fair and promoting equality in workplaces. If you believe that the rules are unjust, unintentionally biased, or cause some groups to be treated worse than others, do not adhere to them slavishly. Instead, attempt to modify and amend them. These unconscious prejudices will continue to rule our workplaces if no one takes action to alter the current situation (Adamson et al., 2020).

When making difficult choices, such as terminating contracts or making individuals redundant, the HR or Legal & Compliance departments may provide sage advice on how to prevent unconscious prejudice or discrimination to ensure that the regulations are followed appropriately. Hence, it is important to stay updated with the current laws and trends on the promotion of equality locally and internationally (Stone, Cox and Gavin, 2020) .

The non-compliance of managers in these laws can result in serious damage to the organisation as well as their careers. If Ann does not comply to these laws and regulations, then she may face significant grievances from her employees with a risk of claims against the laws. She could be alleged for certain breaches in legislations for her behaviour and conduct. Moreover, she may also be entitled to damaged reputations, sanctioning, and even criminal proceedings if there are claims of discrimination, harassment, and mental or physical injuries to the employees.

Performance

Managers and workers manage goals, track performance, and evaluate results across the many stages of the performance management process. The standard cycle for traditional performance management systems is quarterly, biannually, or annual evaluations. Using performance technology to define and track objectives in an open and effective manner in real time and to support continuing coaching, feedback, and alignment as priorities change over time are all parts of a continuous performance management strategy.

Performance management can be improved in several ways:

• Ideally, start small with only one department. Instead of implementing the new evaluation process across the board, try a new approach driven by cascading goals with one department or business function, like IT or finance. Before implementing the new performance management system in other departments, take note of the major lessons from just that one function and make the necessary adjustments. The new system ought to function well by the time the entire organisation starts using it (Murphy, 2019).
• Use technology, especially for aims that cascade. It ought to be simple to keep track of who is in charge of what.  Use a straightforward, user-friendly performance tool that provides everyone with quick visibility and access so that finishing or changing a goal just takes a few seconds. This will allow you to evaluate the technology in a dynamic, real-world setting because you ideally started with a department where one or more midyear changes in objectives are probable (Murphy, 2019).
• Use the knowledge you get from continuous performance management in your annual reviews. If you`re going to implement a continuous performance management system, be sure to use it when it matters most—during the end-of-year review period. Use the system to record and report employee assessments, and evaluate the results against the previous year`s review process. Asses the aspects that have proven to be effective and the areas of improvement to focus on (Weiss and Hartle, 2023).

There are a few laws that are indirectly related to the issues arising from failed performance appraisals (Weiss and Hartle, 2023).. One of the most common employment laws entailing performance of the employees the claim for unfair dismissal which are protected by laws such as maternity or paternity leaves, whistleblowing, health and safety issues, trade unions, and other legal rights such as Employment Rights Act and Work Time Regulations. Another most common performance appraisal law is the Equality Act of 2010 which Ann must be vigilant of. Any discrimination against the employees’ protected rights can result in discrimination claims again the organsiations and Ann as well (Dong, 2022).

Reference list

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Reference list

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Dong, Z. (2022). Impact of Labour Laws on the Performance of Gig Work Platforms: A Legal Review of Three Countries’ Experiences. openrepository.aut.ac.nz. [online] Available at: https://openrepository.aut.ac.nz/handle/10292/15058 [Accessed 16 Aug. 2023].

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