Man3131 Employee Law : Salary Assessment Answers

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Legal problems to which ABC Ltd may be subjected

The first and foremost legal risk to which the company may be subjected is the risk of discrimination. The Equality Act provides nine protected characteristics based on which any act of discrimination is prohibited. These nine traits include Age, Sex, Matrimonial status, sexual orientation, race, disability, religion, gender reassignment and pregnancy. There have been several cases in the United Kingdom which arise with respect to employment law disputes most of these cases are in relation to unfair dismissal, discrimination and employee rights (Craven 2015).

Gender discrimination: ABC Ltd is undergoing an internal selection program for the position of the sales executive. As the company faces stiff competitions from other companies and relies on a strong bond with its customer base for survival. The first legal risk arises with respect to Joan Keenan as her application has prima faice been rejected based on her gender. The equality Act 2010 through Section 13 (direct discrimination), 14 (Indirect Discrimination) and 19 (Combined discrimination) prevents an employer to discriminate the employees based on the protected characteristics. Discrimination in employment can be in any form for example in recruitment, promotion and wages.  Any kind of discrimination against women is not allowed as provided in the case of R (Equal Opportunities Commission) v Birmingham City Council [1989] AC 1155. The school had allocated lesser number of seats for girls as compared to boys; the court provided in this case that this act by the school accounted to sex discrimination. Thus not providing Joan the job in spite of her qualifications as he would not be able to handle the company’s customers in relation to entertainment may account to sex discrimination (Thornton 2013).

Race discrimination: The organization with the course of action taken by them has also attracted the risk of racial and language discrimination. The application made by Aldo Viscida has been rejected based on his inefficiency in English as he is from Milan. He is an excellent sales employee who has been topping the sales chart for the company. Racial discrimination not only arises with respect to a person race but also in relation to his or her ethnic and national origin. A person cannot be discriminated with respect to recruitment and selection if he has the required qualifications for the job but is only inefficient in a particular language which is not needed for the job (Walsh 2015). Discrimination with respect to language is illegal as provided by the case of Kelly v Covance Laboratories Ltd (Race Discrimination: Direct) [2015] UKEAT.  

Age discrimination: Another risk which the company may be exposed to is the risk of age discrimination. Age discrimination arises when a person is not provided equal opportunities even thought having the required qualification merely based on his or her age. Age is one of the protected characteristics as provided by the equality act 2010 (Romero and O'shea 2013).  In the case of Frost v David Harber Ltd(2010) ET 2703446/09 it was ruled by the court that not selecting an employee for a particular job even when they had the required qualification for such job and no other comparator had better requirement than such act would account to a direct age discrimination. Thus in this case Mr. Constant is experienced and qualified enough for the position of the new sales executive however his application has been rejected as he is 61, this action by the company can make them liable for age discrimination (Kubasek, Brenna and Browne 2016).

Employment contract: Change in salary and reduction of wages would also lead to breach in terms of employment contact and the terms cannot be changed without proper consent from the employees.

Dieting and no smoking policy: The Human Rights Act 1998 and the Health and safety at work etc Act 1974 promotes human rights and health rights of employees within an organization respectively. The action plan to be implemented by the selected sales executive restricts the rights to freedom of choice and privacy of the employees. An employee cannot be forced to take no smoking classes and dieting programs by the management unless it is strictly required for their role in the organization. The change in salary structure may also promote health issues for the employees as they would have to put in increased working hours disturbing the balance between personal and work life (Smith and Griffin 2014).  

 Dismissal policy: According to the Employees Right Act 1996 an employee cannot be dismissed unless the employer has a fair and justified reason to do so. In case the proposed plan is implemented and employees are dismissed every year by comparing their efforts with other than the company would be subjected to the legal consequences in relation to unfair dismissal (Dipboye and Colella 2013).

Legal Defenses 

As the parliament has enacted legislation in order to protect the employees against unfair treatment by the employers it has also enacted certain defenses so that the employers are not harassed unnecessarily and can smoothly run the business operations according to its requirements (Marchiondo, Ran and Cortina 2015). There are several defenses which can be used by an employer in order to justify his or her course of action towards selection and recruitment.

Occupational requirement: The first defense which can be availed by the employer is that of occupational requirement. According to Schedule 9 part 1 of the Equality Act 2010 an employer can discriminate based on the protected characteristics if such discrimination is strictly based on operational requirement. For example in a person needs a male actor or a white person for a specific role than rejecting a female or a black person would not account to discrimination (Freedland et al. 2016).

Legitimate Aim: The employers may also claim the defense of working towards a legitimate aim towards the course of action taken by them. If the actions of the employees are based on legitimate aim they cannot be held liable for discrimination.

Another defense which an employer can use with respect to a discrimination claim is the comparison test. In the case of Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 UKHL 11 a woman claimed that the police force was a sexist as they rejected her application for promotion and selected a male candidate over her. It was proved by the defendant in this case that there was a material difference between the application made by the claimant and the appointed person as their colleagues had made several complaints against the women and which was not in case of the man. The court thus ruled that there was no discrimination on the part of the defendants .

The sex discrimination claim which can arise due to the risk addressed above would be strong claim made by Joan against the company. Her application has been rejected because the organization thinks she she would not be able to entertain the company’s strong customer base at night as done by the previous sales executive and the male employees who are the majority would not be feel comfortable in her leadership as she is a women. The claim can be stronger as if a male and similar qualification which she has than he would have been selected as the issues pointed out by the company would not have aroused. However in this case the qualifications with respect to the job of the selected candidate are better than that of Joan. Thus the company can claim the defense of a material difference to evade the liability of discrimination

In the case of Wolf v Stadt Frankfurt am Main 2010 C-229/08 the court ruled that age can be used as selection criteria when it is essential to cover the requirements of the business requirements (Truxillo et al. 2017). In this case it can be claimed by Mr. David that his job application has been rejected based on unlawful age discrimination as he is 61 years of age. His claim can be defeated by the company as they can prove that the qualifications of the selected candidate are better than than that of the claimant and in order to successfully run business operations the company would need a long terms sales executive which is not possible in case of the claimant.

In relation to racial discrimination which can be brought against the company by Mr. Viscida the defense available to the company would be that good English communication skills are one of the main criteria for the selection of an employee as a sales executive. In this case as the claimant is week in English it might be a problem for him to deal with the customer base of the company. Another defense which the company might use in this case is that the claimant does not belong to a particular racial group as provided in the case of Mandla v Lee (1983).

The action plan proposed by the new sales executive also has some legal risk as discussed above such as health risk, rights to privacy and unfair dismissal. Employees cannot be dismissed on the grounds they are performing less as compared to the others instead the company may dismiss them based on lack of performance based on a specified criteria after adequate warning have been issued (Acharya, Baghai and Subramanian 2014). However in this case the complain may claim that the the employees are yet to be dismissed and they cannot claim against potential dismissal.  The company can defend against any health and safety claim by stating that they are not forcing the employees to work extra hours as it is upon their own discretion (Conley 2014).

Employee relation 

The practical, emotional, contractual and physical relationship between an employee and employer can be defined as employee relations. To make it simple the manner in which the employees interact and work together with the organization and the employers is known as employee relation (Blau and Moncada 2015). Good and healthy employee relation effects the motivation and performance of employees in a positive manner directly. Tension and bad employee relationship can degrade the working environment leading to reduction in productivity and workplace disputes.  The management is responsible within an organization to create strong bond with the existing employees and to promptly address any issue arising out of the workplace. Strong employee relations motivate the employees to put in extra effort towards the organization as they are aware of the fact that the organizations cares for them. It also promotes a healthy working environment where the employees can concentrate on productivity rather than other issues and subsequently they become more productive. Fewer conflicts are also one of the direct results of good employee relationship. Fewer conflicts not only reduce the cost of organization which arises out of disputes but also helps in retaining the best talent.

The employee relation issues which can arise out of the present scenario are discussed as follows.

Discrimination- if the employees get to know that the organization is engaging in discrimination practices they directly be de motivated and would not put their best effort towards the organizations productivity. For example the other woman employee in the sales department may also feel de motivated as she would know that there is no scope of promotion for her as she is an employee and subsequently her relationship with the organization would degrade. The organization must provide justified reasons to the employees for not accepting their application.

Work life balance- Every employee has difficulties in maintain a healthy balance between work and personal life but such balance is essential for the health and overall condition of the employees. Changing the salary structure would make the employees receive the same entitlement proving extra effort for work. Such Act would make the employees feel that the organization is only concerned about the productivity and not the condition of employees and the employees would subsequently develop hatred for the management giving rise to disputes. The organization must ensure that they provide extra benefits to the employees without hampering their health (Ruggie 2013).

Dismissal and privacy - the policy of dismissing employees with respect to dismissing them on the basis of compared performance would not only hamper employee relation but would also force them to use unethical means in order to better one another (Sanders 2014). The employees might also feel that the organization is unnecessarily interfering with the privacy of the employees by forcing them to quit smoking and to diet. Such actions by the organization should be imposed by the organizations according to the will of the employees (Howe 2015).

The company must ensure that they apply the good practices of employee relations when it comes to recruitment and selection. They must only focus on the skills of the employees and the benefits they can provide to the organization without doing any discrimination based on the protected characteristics.

Conclusion 

The employment sector is subjected to various legal issues which look complicated prima faice. However an organization can avoid being subjected to such issues merely by following general ethical guidelines. While doing a recruitment of a new employee or selecting an existing employee for new position the main motive of the organization is to select the individual who would provide best returns to the organization. In order to ensure this objective it is essential for the recruiters to select employees only on the basis of their skills and not any personal benefit or relationships. The director’s duties also prevent a director or an officer of the company from placing his personal interest over the interest of the company. Recruitment and selection is a process of utmost importance with respect to an organization. It chooses the individuals who are going to be associated with the operations and culture of the organization. Thus ethical and legal compliance with respect to selection and recruitment must be one of the most important priorities for the line managers. They also have the responsibility to protest if they find any unethical deed with respect to the process done by other line mangers.

Recommendations 

The following practices should be included in the organization in future in order to operate successfully

1. The organization must provide priority to the rights of the individuals. The individuals work in order to live a respectable life and to seek development if their basis rights are not allowed to them than they would only be looking for reasons to resign.
2. The organization should ensure that their discrimination in future both in relation to recruitment of fresh employees and selection of existing employees in order to maintain ethical compliance along with an healthy working environment (Rippon et al. 2013).
3. The organization has to boost the sales and productivity with the inclusion of effective learning and development programs which have proved to be beneficial in improving the efforts of employees. These programs unlike the action plan proposed by the sales executive would promote a sense of ownership in the employees and they would automatically put in extra effort towards the organization without being forced indirectly.

References

Acharya, V.V., Baghai, R.P. and Subramanian, K.V., 2014. Wrongful discharge laws and innovation. Review of Financial Studies, 27(1), pp.301-346.

Bayl?Smith, P.H. and Griffin, B., 2014. Age discrimination in the workplace: identifying as a late?career worker and its relationship with engagement and intended retirement age. Journal of Applied Social Psychology, 44(9), pp.588-599.

Blau, J. and Moncada, A., 2015. Human rights: A primer. Routledge.

Conley, H., 2014. Trade unions, equal pay and the law in the UK. Economic and Industrial Democracy, 35(2), pp.309-323.

Craven, J.A., 2015. The Employment Relationship. NY Practice Guide: Business and Commercial, 4.

Dipboye, R.L. and Colella, A. eds., 2013. Discrimination at work: The psychological and organizational bases. Psychology Press.

Freedland, M., Bogg, A., Cabrelli, D., Collins, H., Countouris, N., Davies, A.C.L., Deakin, S. and Prassl, J. eds., 2016. The contract of employment. Oxford University Press.

Golding, G. and Howe, J., 2015. Book Review: The Contract of Employment by Mark Irving.

Howe, J.M., 2015. Why do so few employees return to their jobs? In pursuit of a right to work following unfair dismissal. Hart Publishing.

Kubasek, N.K., Brennan, B.A. and Browne, M.N., 2016. The legal environment of business: A critical thinking approach. Pearson.

ortina, L., 2015. Modern discrimination. In The Oxford Handbook of Workplace Discrimination.

Rippon, I., Kneale, D., de Oliveira, C., Demakakos, P. and Steptoe, A., 2013. Perceived age discrimination in older adults. Age and ageing, p.aft146.

Romero-Ortuno, R. and O'shea, D., 2013. Fitness and frailty: opposite ends of a challenging continuum! Will the end of age discrimination make frailty assessments an imperative?.

Ruggie, J.G., 2013. Just Business: Multinational Corporations and Human Rights (Norton Global Ethics Series). WW Norton & Company.

Sanders, A., 2014. The law of unfair dismissal and behaviour outside work. Legal Studies, 34(2), pp.328-352.

Selwyn, N.M. and Emir, A., 2014. Selwyn's law of employment. Oxford University Press, USA.

Thornton, M., 2013. Sex Discrimination in Uncertain Times (p. 379). ANU Press.

Truxillo, D.M., Fraccaroli, F., Yaldiz, L.M. and Zaniboni, S., 2017. Age Discrimination at Work. In The Palgrave Handbook of Age Diversity and Work (pp. 447-472). Palgrave Macmillan UK.

Walsh, D.J., 2015. Employment law for human resource practice. Nelson Education.