(2)
Eileen has worked in a call centre for four years. She was given a final warning for this behaviour and the manager saw again performing the same act and He immediately called her in for a meeting and told her that in view of her admitted behaviour, and the fact that she had recently had a final warning for this, he had no option other than to dismiss her, now in this case Eileen feel his been wrongfully been dismiss and thinks of claiming unfair dismissal. If an employer dismisses an employee without following the relevant statutory in full that dismissal is automatically unfair. The employer cannot argue that he would have dismissed in any event, even if he had followed the statutory procedure and that therefore the dismissal is fair. In this case at hand the manager didn’t follow the normal procedure of dismissal because Eileen was only giving one warning then dismiss, according to the procedure it should be one written warning and final warning then dismissal, and each warning should last at least 12 months. In this case Eileen last warning was 15 months ago which means she was out of the warning period before she was dismissed.
An employer who has been continuously employed for at least one year is entitled to request that he be provided by his employer, within 14days of the request, with a written statement of the reason for his dismissal; the statement is admissible in evidence in any proceeding. If the employer unreasonably fails to comply with the request or the particulars given are inadequate or untrue, the employer may present a complaint to an employer tribunal.
When looking at the wrongful dismissal we will talk about Exclusions and qualifications, to measure this procedure we must consider the employee exclusions and qualification, in this case Eileen has been employed for four years and EAT states you must be employed for more than one year, also she had a contract working call center.
Second procedure to consider is was there a dismissal? Yes because she was dismisses at the spot when she was cut in act.
Third action to be considering was did the ER act reasonably in dismissing? No he didn’t act reasonably in dismissal because before dismissing an employee they should be giving a formal notice of meeting which will be lead to their dismissal, also she should have received two warning before dismissal and the last was that she was not even giving an opportunity to appeal against the decision. So Eileen has got every right to claim that it was unfair dismissal and if this case should be taken to tribunal the remedies she should be looking to get is Re-instatement or Re-engagement.
Re-instatement is to his old job as though he had not been dismissed.
Re- engagement is in different job with the same employer his successor or associated employer, in this case of Eileen if she end up winning this case the best advice I can give is for her to chose re-engagement because her current job is so bore and useless for her .
(3)
Harry has worked for six months as a fund raiser for Green Peas and have been dismissed by company because of been a whistleblower against One of GP's major corporate supporters is 'You have Mail' Ltd (YHM), and GP found out about this they dismissed Harry. It now turns out that the allegation about YHM was untrue. So Harry want to claim for unfair dismissal which I think and I will advise him that he has every right because been a whistleblower covers a lot of aspect in law. There are limits on the matters about which an employer can complain, in the ERA 1996 s 43B provides that a qualifying disclosure means any disclosure which in the reasonable belief of the worker. Harry had a reasonable belief that YHM where employing staff that didn’t have the right permit to work in the country and to pay them wrongly, for Harry to make a claim for unfair dismissal under the ERA 1996 he has to provide a qualify disclosure which shows that he strongly belief that it was a wrong doing.
Qualifying Disclosures: Certain kinds of disclosures qualify for protection (qualifying disclosures). Qualifying disclosures are disclosures of information in this case Harry must have to show that some of this Qualifying Disclosure was one of reasons and in which him as a worker reasonably believes tend to show one or more of the following matters is either happening now, took place in the past, or is likely to happen in the future: a criminal offence; the breach of a legal obligation; as well known in this case Harry strongly belief that YHM was in breach of legal obligation; a miscarriage of justice; a danger to the health or safety of any individual; damage to the environment; or deliberate covering up of information tending to show any of the above five matters.
The EAT held in Danton v University of Surrey [2003] IRLR 133 that there can be a qualifying disclosure even if the employee is wrong, so long as the employee was reasonably mistaken. However, the EAT suggest in Kraus v Penna plc [2004] IRLR 260 that for a disclosure to qualify for the purpose of showing a failure to comply with a legal obligation, the must be a legal obligation. A worker, according to the EAT, cannot claim the protection of the Act by claiming he reasonably believed that there was a failure to comply with a legal obligation, in circumstance where there was, in fact no obligation on the employer, and the case at hand Harry can make a claim of unfair dismissal because he strongly and reasonably believe.
In the case of Babula v Waltham Forest College [2007]
Babula was a college lecturer which I think I just took up the work newly. He became concerned that his predecessor had made different remarks to students that had incited racial hatred basically student he took over. He reported his concerns to the college he was ignored, so he decided that to report the matter to police- he blew the whistle. Babula claimed that the college's treatment of him following this disclosure left him with no alternative but to resign. He brought a claim for unfair (constructive) dismissal contending that the disclosure he made was a protected disclosure under section 43 of the Employment Rights Act 1996, an advice which I can give Harry is that he can claim for unfair dismissal and can take his case to the tribunal because the whistle blowing was in good faith, reasonably believing that the information disclosed is substantially true, which is not made for personal gain.
Sanjay has worked for the last 5 years for KarpetKleen Ltd ('KK) has a written agreement with KK entitled 'Self-employed contractor's agreement'. His normal hours of work are from 9.00am – 5.00pm. He is not subject to the same disciplinary procedures as the office and administrative staff of KK, so now Sanjay will like to know if his self employed or an employee. Not all persons who perform work for others are employees, employed under contract of service and in marginal cases; it can be difficult to distinguish a contract of service from a contract for services. Only employees are entitled to redundancy payments or to present a claim of unfair dismissal. Employees pay income tax which is deducted at source under the PAYE scheme, whereas independent contractors pay income tax under a different regime.
In other to find out if Sanjay should act under the employee right we will use three tests to measure his statutes and the three tests are called Control test, organisational integration test and multiple tests.
First is the control test this is when an employer controls the job to be done but not how it is done than the person doing the job is an employee, basically in the case of Sanjay his never been told on how to do the job but his been told that whenever his not available he should get someone to do the work.
Second the organisational integration test this test seek to measure whether the person paid is an integral part of business: an anaesthetist was not a self-employed contractor in Cassidy v The Ministry of pensions [1961] in this case listed an employee but was paid for an agreed minimum number of jobs per year and had to wear company uniforms even also had the company colour on their lorries. But who could choose to do extra work and decided their own routes and used their own Lorries and could use at their pleasure substitute drivers, in Ready Mixed Concrete -v- The Ministry of Pensions 1968 were self-employed contractors, not employees.
Third are the multiple tests this test is very important among all 'one is an employee if Provides work or service for remuneration. The business has some degree of control without any terms contrary to the employment relationship.'
in the case of Ready Mixed Concrete (south East) Ltd v Ministry of pensions and National Insurance [1968] IRLR, in this case the judge from court of appeal said that, if the right and duties in any contract which was signed, implied that it was a contract of employment, then it was irrelevant what the parties had actually called it. So in this case of Sanjay which current case at hand, he signed a contract, a written agreement entitled self employed which mean his not to act under the employee obligations but still carry out his obligation as a self employed.
Word count: 2,210
Bibliography
Case and materials on Employment Law 2008 Edition 3
Employment Law Stautes by Janice Nairns 2009-2010
Employment Law by John J. Moran, (3rd Edition)
Employment Law by Gwyneth Pitt, published by Sweet & Maxwell, 7th edition 2009
Employment Law by Deborah Lockton published by Palgrave Macmillan, 6th edition, 2008
References
