Unfair Dismissal and Relocation Case

Question One

The issue in this situation relates to the fairness of dismissal of Agnes by the employer. The dismissal is based on the decision made by Agnes to not accept the offer of the Lawyers LLP to be relocated to another office as alternative employment on the introduction of the new computer equipment. The questions that are raised here are related to the fairness of the decision of relocation, the reasonableness of the decision made by Agnes to not relocate, and the legality of dismissal. The laws addressing these questions are contained in the ERA and the Equality Act 2010. The employer may argue that the decision to relocate Agnes is based on the consideration of whether she had the capability to learn the new sophisticated computer system. There is a reasonable procedure provided in the ERA for this purpose. The question is whether the reasonable procedure was followed before making the decision to relocate Agnes into alternative employment. A capability related decision related to the employee is explained in Sections 98(2)a and 98(3) of the ERA, which relates to competence to do the job hired to do. Thus, the employer may dismiss an employee for capability reason after a clear warning and an opportunity to improve. In order for capability related reason for dismissal, the employer must honestly believe on reasonable grounds that employee lacks capability (Tayside Regional Council v Mcintosh [1982]). For the purpose of this, a capability related investigation should be conducted. Thus, the first step in the procedure of investigation is appraisal, where the employee is made aware of the performance related issue. If the investigation leads to an assessment that the employee’s capability is compromised, then a warning regarding need to improve within reasonable time and with reasonable support is to be provided to the employee. If there is an assessment that the employee would be better utilised in an alternative employment, then that option is to be given to the employee after the first steps are followed.

In this case, Lawyers LLP do not appear to have conducted a fair investigation into Agnes’ capability with regard to new computer equipment before making the decision to relocate her. The case clearly shows that following the introduction of sophisticated computer equipment, the firm decided to make redundant Agnes and two other legal assistants. The investigation into whether Agnes was capable of learning how to operate the new equipment does not appear to have been made. Therefore, this part of fair procedure does not appear to have been followed. This exposes the decision of Lawyers LLP to allegations of unfair dismissal. Agnes may argue that it is due to her age that the Lawyers LLP have taken this decision as she is 50 years of age. Age is a protected characteristic under the Equality Act 2010, Section 4. Section 13 prohibits direct discrimination which is defined as an act that discriminates because of a protected characteristic or less favourable treatment as compared to others because of a protected characteristic. The Equality Act, Section 13 does allow the employer defence of justification for direct discrimination for the purpose of “proportionate means of achieving a legitimate aim”. However, such means should be proportionate and lead to legitimate aim (Seldon v Clarkson Wright & Jakes, 2014). In this case, it cannot be said that the relocation of Agnes due to the introduction of new computer equipment is proportionate or achieves legitimate aim of perhaps better administration because she was never presented with an opportunity to learn how to use the new equipment or given a warning for improvement. Therefore, Agnes may be able to argue that the reason that this decision was taken was because it was assumed that at her age, she would not be able to learn the new computer equipment usage. This was unfair because she was not given reasonable time and support to learn the usage of new equipment and decision was taken to relocate her. Agnes may also question the reasonableness of the decision of the alternative employment to an office that is 200 miles away from the original place of work. Section 191(3) of the ERA provides that offers of suitable alternative employment must not be unreasonably refused. The question is whether the alternative employment was suitable and whether Agnes’ refusal was unreasonable. Reasonableness depends on the circumstances of the relationship between the employer and employee including service and seniority. Agnes’ decision to refuse alternative employment may be reasonable if it is based on a good reason related to the job or personal situation; for instance, the 200 miles distance could be a good reason if it will disrupt family life, or if the job would entail a longer and tedious journey. In the event of the employee refusing alternative job offer, she is entitled to redundancy pay (Cambridge & District Co-op v Ruse; Commission for Healthcare Audit & Inspection v Ward). In this case, if Agnes argues that she refused the alternate employment reasonably, and she is able to establish her case, she would be entitled to a redundancy pay. However, Lawyers LLP has given Agnes ten weeks’ pay in lieu of notice and dismissed Agnes. This gives Agnes a cause of action against Lawyers LLP and she can claim redundancy pay instead of getting notice period wages from the employer. Considering her age and period of work with Lawyers LLP, her redundancy package is significantly higher as compared to getting 10 weeks wages. In order to get damages from the employer, Agnes will have to show that the dismissal was unfair. The computation of damages will be based on the maximum compensatory award under Sections 118 and 123 of the ERA. This would involve giving to Agnes what is just and equitable having regard to the loss suffered by her including the wages for the notice period and future loss. For this, the estimated length of time that employee may remain unemployed is also relevant.

To conclude, Agnes can claim unfair dismissal based on the lack of fair procedure for decision of relocation on the basis of incapability. She can claim that her refusal of alternate employment was reasonable under the circumstances. She can claim redundancy pay.

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Question Two

This essay critically assesses the nature and significance of the Working Time Regulations 1998 and the National Minimum Wages Act 1998 as a means of protecting service providers’ rights. The Working Time Regulations 1998 are essential to protecting the interests of the workers as these regulations are enacted to implement the Working Time Directive and the Young Workers Directive. Thus adult as well as adolescent workers have certain rights with respect to working time, health assessments for night work, minimum daily and weekly rest periods and rest breaks at work. The objective of the law is to ensure minimum daily, weekly and annual periods of rest and adequate breaks and for that purpose place a maximum limit on weekly working hours. The scope of the regulations is wide with not just employees, but also trainees, and agents included in the scope. Therefore, the regulations ensure that periods during which the worker is working or even is at the employer's disposal would count as working time (Edward v Encirc Ltd [2015]). There is however no bar on employees and employers contractually agreeing to more hours of work as individuals can opt out in writing (Pfeiffer’s case [2005]). The law is made stringent by providing for penalties for non compliance except in the case of exclusion such as when an employee opts out. The failure to comply with requirements of the law may lead to a fine and in some cases imprisonment may be given as punishment. The important and underlying feature of the regulations is the principle of giving adequate rest to the employees (Corps of Commissionaires Ltd v Hughes [2009]). The National Minimum Wages Act 1998 is important because it provides for the minimum wages that employers are statutorily required to pay to the employees. The law is significant protection for worker rights especially when the workers are not represented by trade unions and lack collective bargaining powers to enjoin upon the employer the duty to pay a fair minimum wage. Moreover, the law is also important because it lays down a uniform policy of minimum wage cutting across industries and occupations. This was not the case prior to the passage of this law when different wage bodies existed to regulate the rights of the workers to a fair minimum wage. Another important feature of the law is that it sets up a reasonably strong enforcement mechanism to ensure that employers do not renegade on their duty to pay a minimum wage. The legislation provides a right to enforcement by the worker, as well as the right to compensation under Section 18. Moreover, workers are protected from being unfairly dismissed or being made to suffer some detriment under the law. This increases the protection to the workers and improves the structures of workers rights enforceability in the UK.

Question Three

This essay critically evaluates the provisions of the Equality Act 2010 to prevent disability discrimination. Disability is one of the grounds of discrimination. At this point, it can be said that the law on disability discrimination is well evolved with respect to different aspects of disability and discrimination at work place. Disability is a protected characteristic for which both direct and indirect discrimination is prohibited. The protection of those who are disabled is also done under the concept of ‘reasonable accommodation’ which lays duties on other individuals to understand and accommodate persons with disabilities. Disability is defined by the Equality Act 2010 in Section 6 widely so as to include a wide number of individuals who have any physical or mental impairment with substantial and long-term adverse effect ability to carry out normal activities. Therefore, by having a broad definition of disability the law addresses the diverse disabilities. Section 15 of the Equality Act 2010 addresses the issue of 'discrimination arising from disability' wherein any action or behaviour that leads to treatment of an individual in an unfavourable manner in consequence of his disability is considered to be discriminatory and attracts the provisions of the Equality Act 2010. In order to not be discriminatory, employers are placed under obligations related to three specific requirements under Section 20 of the Equality Act 2010. This includes the duty to make the physical features of a building amenable to use by disabled employees and the duty to provide auxiliary aids or services. Under the Disability Discrimination Act 1995, which was applicable to disability discrimination, only direct discrimination was prohibited; however, the Equality Act 2010 extends the scope of protection of disabled employees by also including indirect discrimination. The definition of direct discrimination is also extended to cover cases of less favourable treatment based on an incorrect belief that someone has the protected characteristic of disability. Another improvement made by the Equality Act 2010 is to remove the need to establish victimisation on the basis of comparator. Disability is however not the same as disease and employees who are impeded in their job requirements due to disease are not able to take advantage of the protected characteristics (Metroline Travel Ltd v Stoute [2015]). This is an area of concern in the current law because some chronic diseases may actually be a disability under the social model of disability. This shows that one of the areas of criticism of the law is that it is reflective of the lack of consensus in medical community as to what disability means. The practice of the courts confirm that they are unwilling to define disability broader than what is provided in Section 6 where the important factors are nature of impairment (physical or mental) and the effect of the impairment (substantial and long-term adverse effect). Interestingly, court has used the same parameters to say that obesity can be considered to be a disability under Section 6 (Karsten Kaltoft v Billund Kommune Case [2015]). One of the needs for the improvement of the current law is to define disability in context of disease related impairments.