Executive Summary
Effective human resource management ensures building open relationships between employees and their managers to avoid possible adverse implications. The case of Des and Sarah Cole, the owners of an independent wine merchant’s store, showed that ineffective HRM practices could lead to arguments and conflicts in the workplace that may even result in either reasonable or unreasonable dismissal. It was found that all claims employees made against their management could have been avoided with the help of sustainable HRM procedures that cater to the demands of workers but are beneficial to employers at the same time.
Introduction
The UK employment law has the following key sources: the common law and statute of European law (both in the form of European Directives and decision made by the European Court of Justice). As to the brief overview of the Contract of Employment, it is an agreement between a worker and an employer that provides a basis for the employment relationships (ACAS n.d.). The contract begins as soon as the employee accepts the offer of employment and ends when the employee is dismissed or decides to resign. The paper will focus on exploring various points associated with the contract of employment, specifically matters of dismissal, unethical practices, and overall relationships between workers and employers.
Discussion of Cases
The case study concluded with four claims from employees that Des and Sarah Cole were forced to manage in order to overcome the arguments their company had with workers. The first claim was for disability discrimination and unfair dismissal (£50,000). The second was linked to unfair dismissal due to the unreasonableness on the part of the employer (s.94-98 ERA). The third claim asked for a £20,000 settlement for withdrawal of three claims: constructive dismissal, sex discrimination, and breach of the Public Interest Disclosure Act. The last also claimed unfair dismissal and violation of Working time Regulations (£15,000).
First, it is important to establish whether unfair dismissal occurred. Under the UK employment law, if an employer dismisses a worker, he or she should provide a valid reason for justification and act reasonably in the given circumstances (Dismissal: your rights 2012). In Metroline West Ltd v. AJAJ (2015) UKEAT 0185-15-0312 the unfairness of dismissal was determined on the basis of examining the effects of the Claimant’s injury as well as whether those effects were exaggerated.
The effective date of termination for a dismissal that took place without notice is the date when the employee could reasonably find out (or finds out) about the dismissal. In the first case of Diane, there was a valid reason for the dismissal (poor physical health); moreover, employers decided to offer Diane a year’s salary as a final settlement.
Regarding Graham’s dismissal, the issue of reasonableness comes into play. He was dismissed without any notice on the basis of gross misconduct. The fact that the employee was dismissed without notice is an issue for the effective date of termination for dismissal; however, the reasonableness of the employer’s actions can be explained: Graham was earning money (small amounts) behind the employers’ back, which is at least considered improper work ethic and could be seen as misconduct.
In the case of Kelly, she decided to resign on the basis of constructive dismissal, which occurs when an employer commits a contract breach that leads to an employee’s resignation. An example can be found in Wright v. North Ayrshire Council (2013) UKEAT 0017-13-2706, in which constructive dismissal was determined on the basis of a decision whether the employer’s breach was the ‘effective cause’ of the resignation. While it is highly likely that Kelly’s car was vandalised by some of her ex-coworkers, there is no responsibility of employers to cover the cost of the repairs. In her case, it could have been more beneficial to make an insurance claim regardless of the possible premium increases and settle the matter with the help of the police.
Despite the fact that Kelly received and unsympathetic response from her employers, there is no ground for claiming sex discrimination at that point. As to the claim that the employers violated the Public Interest Disclosure Act, there could be an issue for Sarah and Des. When Kelly let them know about Graham’s fraudulent activities, she had made a protected disclosure, which meant that she should not have been subjected to any ‘detriment’ (Part IVA) (The Public Interest Disclosure Act 2013). If indeed, Sarah or Des were the ones who let Graham know about Kelly’s actions, the breach can be considered valid.
In Ralph’s case, the breach of the Working time regulations can be easily proven. Ralph had agreed to the 48-hour workweek; however, he was forced to work more than that, which contributed to his anger with the employer. The dismissal occurred; it was unreasonable because Des had acted on the basis of his feelings and not on the basis of relevant issues that could serve as explanations for the reasonableness of his actions.
Analysis of Cases
This section will focus on examining the strengths of each claim as well as the identification of defences Des and Sarah could use to defend them. In the case of Diane’s dismissal, the strength lies in her hard work before the accident occurred. In the beginning, she was signed off sick and was not discriminated against to any degree. If to provide an example from common case law, Dakin v. Brighton Marina Residential Management Company Ltd. (2013) UKEAT 0038-12-2604, decided whether a worker was unfairly paid for the holiday; however, Diane was offered a large payment, which cannot be considered discrimination.
After visiting Diane, Des and Sarah decided that she is unable to return to work when needed; however, they did not consult a healthcare specialist to assess Diane’s state nor did they communicate their fears about her unable to work. Under the Disability Discrimination Act 1995 and the Equality Act 2010, an employer has a duty to make reasonable adjustments in the workplace to cater to the needs of a particular employee (Citizens Advice 2010), which Des and Sarah did not care to do.
When it comes to the defences Des and Sarah could use to withstand the claims of Diane’s solicitor, it is worth to appeal to the disruptions, impracticality, lack of help for other employees and cost ineffectiveness associated with the workplace adjustments needed for Diane to get back to work. Also, Des and Sarah should underline the fact that they offered a payment of twenty-five thousand pounds, which is a year’s salary, as compensation for Diana and a gesture of respect to her position.
After all, Diana was not dismissed just on the basis of her disability after the accident; the company was going through a rough time and needed to fill the empty position and hire more workers to sustain the business and increase revenue. If Diana indeed had a chance to come back and start working for Des and Sarah, they should offer her an opportunity to do so in the future.
Regarding Graham’s claims of unreasonable dismissal based on the employer’s solicitor, his strengths include procedural irregularity, being dismissed without notice, and the exemplary record of conduct prior to selling wine without employers’ knowledge. However, in these points, the advantages of Graham’s case end. As the case showed, there was substantial evidence for his fraud despite him confessing to it.
Under the Employment Rights Act s.98 (2), Graham was competing against his business during work, which points to the breach of fidelity and trust given to him by Des and Sarah Cole. As employers, Des and Sarah should argue that they were placed in a position to trust their employee, and their trust was violated under the duty of Mutual Trust and Confidence (Cabrelli 2005).
With regards to the claim made by Kelly’s solicitor as to constructive dismissal, sex discrimination, and breach of the Public Interest Disclosure Act, the strength of her argument is related to her having to experience property damage due to vandalism outside the workplace and following the duty of fidelity and mutuality of trust to the employer (thus telling Des and Sarah about Graham’s actions). On the other side of the argument, the vandalism occurred outside the workplace, which points to the optional extension of the duty of care by her employers; also, she was not forced to resign but was recommended to contact the police and her insurance company concerning the property damage.
As to her claims of sex discrimination, it is important to investigate the matter of a ‘comparator,’ which means comparing the treatment of one employee with the treatment of another employee that does not (or does) have the same protected characteristics (Citizens Advice 2017). The fact that there is no strong case for the ‘comparator’ can mitigate the claim of sex discrimination altogether. For example, if other non-gender-specific words were written on her car, the claim would not have been even made.
Lastly, it is important to analyze Ralph’s claims and their advantages. The major strength if the claim is not associated with the breach of the Working time Regulations but rather with the unreasonableness of his dismissal. Ralph signed a contract with a clause in which he agreed to opt-out of his right to a maximum working week of 48 hours under the terms of the Working time regulations.
After working for almost two weeks, Ralph had decided that the workload was too much for him to handle without days off, which is understandable from a personal perspective. However, the fact that the contract included ‘opting out of the 48 hour week’ gives Sarah and Des and advantage as employers since they did not force Ralph to agree and offered a substantial payment for his work. The breach of the Working time Regulation could have occurred if Ralph was forced to sign a contract or was refused to cancel the opt-out agreement with a 7-day notice (Maximum weekly working hours n.d.). Regarding the reasonableness of Ralph’s dismissal, he can argue that Des reacted suddenly and did not give enough reasons for dismissing Ralph without notice.
Beneficial HR Practices
The establishment of beneficial HR practices within organisations is essential for ensuring that the effort of employees is recognised or that the quality of internal relationships is kept on the highest level possible (CIPD 2015). If to recommend specific HR practices that Des and Sarah could implement for the improvement of relationships with their company, it is important to focus on each employee separately to develop a set of steps that could lead to possible change. In Diana’s case, employers could have paid more attention to her needs after the injury and create an accommodative environment, in which she could function successfully and do her job.
While such accommodations tend to be expensive, the aim of the employer should be placed on retaining the employees’ current position by applying reasonable adjustments where appropriate (The Open University 2017). The Equality Act of 2010 (applied to all employees and covers those that have or have had a disability) provides an overview of reasonable adjustments such as altering work hours, assigning employees to different places of work, providing support and supervision, and other procedures that could be implemented.
Regarding Graham’s case, a good HR practice is introducing activities and training targeted at improving teamwork efforts and integrating the environment of trust. Since Graham’s and Jack undermined the trust of their employers, it is essential to make sure that the same does not occur in the future. Brown, Gray, McHardy, and Taylor (2015) provided a theoretical framework for linking employee trust and workplace performance, which means that HR practices aimed at improving relationships between employees are imperative. The case of Kelly also shows that exercising trust in the workplace is an important practice.
Moreover, her claims are evidence of the lack of fairness in the company. Fostering fairness and equity in the workplace can be achieved with the help of four strategies outlined by Erb (2016) from Entrepreneur: reaffirming that all employees receive equal opportunities, fairly handling promotions or dismissals, adding transparency to the majority of the management’s actions, and offering a fair process of appeals.
Lastly, Ralph’s case pointed to the lack of communication between the employer and the employee, which resulted in the argument and a subsequent dismissal. Among the strategies targeted at improving the quality of communication the following stand out the most:
- Investigation of communication models (e.g. Shannon’s model of the communication process);
- Addressing the challenges to communication (e.g. sociocultural differences);
- Eliminating employee silence (lack of communication);
- Introducing leadership styles that foster communication and engagement;
- Resolution of conflicts and crisis situations through collaboration (ACAS n.d.).
Conclusion
The analysis of the case study provided insights into various issues that employers can meet when the lack of attention is paid to effective and sustainable HR practices. All four claims made by employees could have been avoided if Des and Sarah had more knowledge about the Contract of Employment, the Disability Discrimination Act, the Equality Act, and the Public Interest Disclosure Act. Handling employee relations issues in a company is a matter of conduct management for both employers and workers. The cases under investigation showed that arguments between employees, their co-workers, and managers could have been avoided if better HRM practices were implemented.
Recommendations
The key recommendation for the company is improving the quality of communication and fostering change for better trust, teamwork, and the attention to the provisions outlined in the Contract of Employment. Future practices for the company should include teamwork coaching sessions, procedures for ensuring equality and fairness, as well as a careful process of hiring and training to make sure that no miscommunication occurs and leads to consequences such as arguments and dismissals. Also, the management should be more attentive to the actions of employees regarding the internal competition (e.g. selling products behind the management’s back) and property damage.
Reference List
ACAS n.d., Contracts of employment. Web.
Brown, S, Gray, D, McHardy, J & Taylor, K 2015, ‘Employee trust and workplace performance’, Journal of Economic Behaviour & Organisation, vol. 116, pp. 361-378.
Cabrelli, D 2005, ‘The implied duty of mutual trust and confidence: an emerging overarching principle?’ Indian Law Journal, vol. 34, no. 4, pp. 284-307.
CIPD 2015, From best to good practice HR: developing principles for the profession. Web.
Citizens Advice 2010, Comparators in direct discrimination cases. Web.
Citizens Advice 2017, Duty to make reasonable adjustments at work – what must employers do? Web.
Dakin v. Brighton Marina Residential Management Company Ltd. (2013) UKEAT 0038-12-2604.
Dismissal: your rights. 2012. Web.
Erb, M 2016, Four ways to foster fairness in the workplace. Web.
Maximum weekly working hours. n.d. Web.
Metroline West Ltd v. AJAJ (2015) UKEAT 0185-15-0312.
The Open University 2017, Code of good practice on the employment of disabled people. Web.
The Public Interest Disclosure Act 2013. Web.
Wright v. North Ayrshire Council (2013) UKEAT 0017-13-2706.