Yr3 Sem.1 – Employment Law MOD004665
3000 WORD ESSAY BASED ON 2 RELEVANT CASE STUDY SCENARIOS AND PRACTICE WITHIN AREA OF EMPLOYMENT LAW
You must use appropriate case law in order to support your answers.
Magley Custom Kitchens (MCK) is a company designing and manufacturing fitted and custom-made kitchen furniture operating from a Business Park in Camford. The company has 250 employees and has been operating for 15 years. You are a recently recruited HR Manager (you replaced the previous Personnel Manager- Chris Walker – who retired two months ago). The company has taken the opportunity of restructuring your predecessor’s role to give formal acknowledgement of the growing importance of HR. You must advise the Company Secretary (a senior manager in the company) on what needs to be done in the following two scenarios; you must attempt BOTH scenarios.
When you arrived in your new job you discovered that there were few up to date policies and procedures for the management of human resources. Many decisions have been made by line managers with little or no clear guidance from the previous Personnel Manager who had concentrated on the line management of the small team of general administrative staff, rather than getting involved in human resource issues which have been left to line managers. There appears to have been no training on handling the difficult issues for line management. There is a formal disciplinary procedure and a formal grievance procedure which seems to have been downloaded without modification from an old Government department website several years previously.
Terms and conditions for all staff are generally good and include competitive pay and a defined contribution pension scheme, whereby the company has contributed 3% of gross pay, and the employees 5% into the scheme. There are other more minor benefits such as reduced cost membership of the local leisure centre for employees and company vehicles for senior managers and sales “representatives”.
Over the past few months various items of company office equipment, including a couple of lap-tops, mobile phones and tablet devices, have been reported as missing from the design Studio and the Security Manager (Jamie Black) suspected that someone was taking company property. Jamie conducted a random search of the personal lockers of members of staff a couple of days ago. Office and design staff normally leave their handbags and other bags and coats in these lockers. Only the most senior and long serving members of staff have their own locker as there are not enough lockers for all staff to have a locker to themselves, so about half the staff have to share a locker with at least one other worker. There are approximately 4 keys to every locker; a full set of keys are kept in the admin office at the reception desk, each worker has a key and the security staff have a full set of keys.
During the random search Jamie Black found a new lap-top in a supermarket bag in the locker allocated to Janine Holt and Kiren Sumner. Janine has worked for the company for 3 years whilst Kiren has worked for the company for six months. Each has a key to the locker, although another key to that locker was lost by a previous member of staff who had left 6 months ago and he had reported this loss when he left the company.
Immediately upon finding the lap-top, Jamie checked the purchase records and asked the accounts department to see if this was indeed one of the lap-tops that had gone missing and they confirmed that it was. He went to Janine’s and Kiren’s line manager, John Barnsley – the Design Studio Manager – and told him of his findings. John Barnsley immediately called Janine and Kiren into his office and suspended them pending a disciplinary meeting, which he held with them two days later. Both denied taking the lap-top but were unable to offer any explanation as to how it had got into the locker. Janine stated yes, she had used the locker as usual, and that she had noticed the bag the morning before she was suspended, but as it wasn’t hers she had just assumed it was Kiren’s. She had not looked inside the bag as that would have been “nosy”. Kiren, on the other hand, stated that he hadn’t seen the bag at all and claimed he had not used the locker for a couple of days because the weather had been good and he had not worn a coat to work.
As there was no way to collaborate their stories and no way to decide which of the two had taken the lap-top, at the end of the Disciplinary Meeting John told them they were both dismissed with immediate effect with pay up to the date of their suspension. Neither individual had had any disciplinary issues before this incident and they were rated as good and diligent workers in their last appraisals. They both appealed their dismissal decision to the Managing Director who, having looked through the paperwork and talked to Jamie and John, had refused their appeal without a further meeting or investigation. They have both now submitted unfair dismissal and wrongful dismissal claims to the Employment Tribunal, and the company has received the ET1 claim form and have the ET3 response form to complete.
Give your advice as to the legal issues involved and the strength and/or weaknesses of the company’s case. What do you need to do to either refute the claims of unfair and wrongful dismissal at the Tribunal or, if you believe the company’s case to be weak, what you should do now to prevent the case going to Tribunal
You have received a letter of complaint from Sarah Mitchell, who last month had applied for a design position at Magley Kitchens. Sarah has only recently returned to work after caring for her two children for a number of years. She has completed a part-time graduate design course at her local college over the past three years, achieving excellent marks. She has been looking for a full-time position for a couple of months, rather than the temporary jobs she has been able to obtain. Sarah applied for a job with MCK as a kitchen designer five weeks ago. She was given an initial interview but was not short-listed for a final interview. The position was offered to a 23 year old recent graduate with the same qualification in design as Sarah, although the individual had not achieved as high a grade as Sarah.
A week after Sarah’s rejection letter from the company arrived she was having coffee in the local coffee shop when she recognised at the next table the person who had interviewed her at MCK, John Barnsley – the Design Studio Manager. She went up to him as she was leaving and she told him how disappointed she was not to get a final interview. He told her that she wasn’t really suitable for the job because she was 43 years old and the company wanted to present a ‘young designer’ image.
Sarah has written to you saying that, although she realised that the initial job advertisement had specified that the candidate be under 40 years of age, she thought she would be very good at the job and she felt it was unfair not to consider her because of her age.
You are asked to consider the legal implications of this situation and should outline the actions that may result from this complaint.
Advice for Assignment 010:
The advice should be in report format, with clear headings, paragraphs and numbering where appropriate. The reports should as a minimum have at least the following sections (and possibly convenient sub-sections dealing with the issues raised):
a) Introduction: A very brief outline of the key issues, background/situation in scenario etc. Do not just repeat the facts of the question.
b) Findings: An analysis of the legal position should be included, using legislation and case law to define the issues involved on both sides.
c) Conclusions: What the legal position is believed to be.
d) Recommendations: What the company needs to do now – in the short term and long term.
Appropriate referencing, particularly of cases and law materials, is vital and good work will have a reference list (of cases and other sources) for all material used in the text, plus a bibliography of all materials which have been accessed and read even if not actually quoted in the text itself.
The bibliography and reference lists should not be included in the word count.
Pay attention to Learning Outcomes:
Students should consider to what extent they have demonstrated the learning outcomes in their answer, as this is a key criterion for a successful assessment result.
All coursework assignments and other forms of assessment must be submitted by the published deadline. It is your responsibility to know when work is due to be submitted – ignorance of the deadline date will not be accepted as a reason for late or non-submission. Any late work will NOT be accepted and a mark of zero will be awarded for the assessment task in question.
You are requested to keep a copy of your work.
Further Case Scenario Background Information:
Magley Custom Kitchens Disciplinary Procedures (extract)
1) Purpose and Scope
The Company’s aim is to encourage and help individuals to improve their conduct and achieve and maintain standards of job performance and attendance. The company rules are in your staff handbook and are also displayed in the general office at each site. This procedure applies to all employees. The aim is to ensure consistent and fair treatment for all.
a) The disciplinary procedure is designed to establish the facts quickly and to deal consistently with disciplinary issues. No disciplinary action will be taken until the matter has been fully investigated.
b) Employees will be informed of any allegations against them at least 3 days before any formal disciplinary meeting is held.
c) At final stages only, employees will have the opportunity to state their case and be represented, if they wish, at the hearings by a fellow worker where deemed appropriate.
d) No employee will be dismissed for a first breach of discipline except in the case of gross misconduct when the penalty will be dismissal without notice or payment in lieu of notice.
e) The procedure may be implemented at any stage if the employee’s alleged misconduct warrants such action.
3) The Procedure
Minor faults will be dealt with informally but where the matter is more serious the following procedure will be used:
Stage 1 – Oral Warning
If conduct or performance does not meet acceptable standards the employee will normally be given a formal oral warning, which will be recorded, but will be “spent” after 6 months, subject to satisfactory conduct and performance. S/he will be advised of the reason for the warning, that it is the first stage of the disciplinary procedure, and of his or her right of appeal.
Stage 2 – Written Warning
If the offence is a serious one, or if a further offence occurs, a WRITTEN WARNING will be given to the employee by the supervisor. This will give details of the complaint, the improvement required and the timescale. It will warn that action under Stage 3 (below) will be considered if there is no satisfactory improvement and will advise of the right of appeal. A copy of this warning will be kept on the individuals personnel file, but will be regarded as “spent” after 12 months of satisfactory conduct and performance.
Stage 3 – Final written warning or disciplinary suspension
If there is still a failure to improve either conduct or performance to a satisfactory level; or, if the misconduct is sufficiently serious to warrant only one written warning but not sufficiently serious to warrant dismissal (in effect both a first and final warning) A FINAL WRITTEN WARNING will be given to the employee. This will give details of the complaint, and warn that dismissal will result if there is no satisfactory improvement within a specified timescale, and will advise of the right of appeal. A copy of this final written warning will be kept by the line manager but it will be “spent” after 24 months, subject to satisfactory conduct and performance. Alternatively, consideration may be given to imposing a penalty of a disciplinary suspension without pay for up to a maximum of five working days.
Stage 4 – Dismissal
If conduct or performance is still unsatisfactory and the employee fails to reach the prescribed standard DISMISSAL will normally result. An appropriate senior manager can take the decision to dismiss. The employee will be provided, as soon as reasonably practicable, with written reasons for the dismissal and the date on which the employment will terminate.
An employee who wishes to appeal against a disciplinary decision should inform the Personnel Manager within two working days. An appropriate manager along with the Personnel Manager will hear the appeal and their decision will be final. At the appeal any disciplinary penalty imposed may be reviewed but cannot be increased.
5) Gross Misconduct
The following list provides examples of offences that are normally regarded by the Company as gross misconduct:
• Theft, fraud, deliberate falsification of records, deliberate damage to company property
• Fighting, and physical assault on another person
• Serious incapability through alcohol or being under the influence of illegal drugs
• Any operation of machinery after taking any alcohol or drugs which impair abilities to operate machinery
• Serious negligence which causes unacceptable loss, damage or injury
• Serious act of insubordination
• Any periods of absence exceeding 3 days without “good cause” and without the express permission of management (employees should note the sickness absence reporting procedure in staff handbook)
If you are accused of an act of gross misconduct, you may be suspended from work on full pay, normally for no more than five working days, while the company investigates the alleged offence. If, on completion of the investigation and the disciplinary procedure, the company is satisfied that gross misconduct has occurred, the result will normally be summary dismissal without notice or payment in lieu of notice.
Magley Custom Kitchens Grievance Procedure (extract)
Purpose and Scope
This Procedure applies to all current employees of the company and covers all issues which are amenable to local determination and resolution. The guiding principle of this Procedure is that issues should be resolved as near their point of origin as possible and as soon as possible. In consequence the timescales included in the Procedure may be extended or shortened by mutual consent.
An employee who wishes to raise any issue in which s/he is directly concerned must first raise it with their immediate manager, making it clear that s/he is taking the first step in the procedure.
Their immediate manager will arrange a meeting as quickly as possible so that the issue can be discussed with the employee(s). This meeting will be held in a room away from the general work environment. If a satisfactory solution has not been reached within a maximum of 5 working days the employee may refer the issue to their Manager’s superior under Stage 3 of the Procedure.
The Manager’s superior will arrange a meeting as quickly as possible so that the issue can be discussed with the employee(s). If the employee wishes to have a fellow employee as their representative present at this meeting, then the employee must notify the manager of their representative’s name and they will be invited to attend.
If a satisfactory solution has not been reached within seven working days, the employee may refer the issue to the Personnel Manager who will arrange for a Senior Manager to meet with the employee(s) and (where requested) their representative under stage 4 below.
The Senior Manager will arrange a meeting as soon as possible so that the issue can be discussed with the employee(s) and his/her representative – this meeting shall take place not more than seven working days from the employee’s request. If the Senior Manager is unable to resolve the grievance, the employee(s) can request a final “Appeal” meeting with the Managing Director.
Final Appeal Meeting
The Managing Director will arrange a meeting with the employee(s) and his/her representative in no less than 7 working days (subject to his/her availability). Any decision taken by the Managing Director to resolve the grievance at this stage is final.
Note: If the grievance involves a complaint against the immediate manager of the employee(s) the matter can be referred, in the first instance directly to the Manager’s superior (as under stage 3). However, the immediate manager must be informed in writing of the grievance against him/her.
1.1 Learning Outcomes
This module, like all modules at Anglia Ruskin, is taught on the basis of achieving intended learning outcomes. On successful completion of the module, the student will be expected to be able to demonstrate the following:
Knowledge and understanding
Exceptional information base exploring and analysing the discipline, its theory and ethical issues with extraordinary originality and autonomy.
Intellectual, practical, affective and transferable skills LO 1. Understand and critically evaluate competing approaches that contextualise contemporary developments in employment relations; contemporary labour market trends and data.
LO 2. Appraise critically through comprehensive understanding of the main sources of employment relations legislation.
LO 3. Manage recruitment and selection activities lawfully and know how to manage change and re-organisation lawfully.
LO 4. Manage issues relating to pay and working time lawfully, ensure that staff are treated lawfully when they are at work and manage performance and disciplinary matters lawfully.
Exceptional management of learning resources, with a higher degree of autonomy/exploration that clearly exceeds the assessment brief.Exceptional structure/accurate expression.Demonstrates intellectual originality and imagination. Exceptional team/practical/professional skills
The assessment is based on meeting these learning outcomes, shown explicitly in section 4, where the assessment task is linked to these learning outcomes.
You will be marked on Grademark according to the following criteria:
For each of the two case study scenarios: Max Mark Learning Outcome
(Section 1.3 of this document)
1. Use and application of the relevant law to underpin the analysis, including Statute, case law and legal definitions.
Have the specific issues been identified and defined and have suitable legal cases and legislation been incorporated as part of the discussions 15 2, 4
2. Analysis and matching of facts of scenario to the law and any relevant good practice guidelines, for example, the ACAS Code of Practice on Disciplinary and Grievance.
Has an explanation of the issues identified been provided and are the arguments / discussions coherent and applied to the problem question 20 1, 2, 3, 4
3. Have appropriate recommendations on action to be taken been included and measures for future prevention of problem been outlined 5 1, 2, 3, 4
4. Academic Rigour: Detail of presentation, including accurate referencing of cases, Statutes and other sources, use of Harvard referencing, spelling and grammar. 5 1, 3, 4
5. Appropriate structure of report – demonstrating thorough consideration and arrangement of material whilst revealing a systematic approach to producing a coherent answer.
This should include the provision of an introduction, an analysis broken down into relevant sections and, if necessary, sub-sections, a conclusion and a list of references and bibliography. 5 1, 3, 4
TOTAL MARKS 50