Employment Law Essay

Early this category, in that location are reports that the number of employees career in swan has risen to staggering levels. gibe to an absence seizure seizure seizure seizure anxiety company, at that space are about 3. 6 million employees who called in sick the first workweek of January (Pitcher, 2008). The United Kingdom ranked as scrap as having the close to number of employees with long term sickness in a survey conducted by the European Community (Tehrani and Rainbird, 2005).The level of absence for UK was 27. 2% as against an average of 16. % of the European Union (Tehrani and Rainbird, 2005). An approximate anatomy of 14. 1 million days were lost to stress and anxiety in 2001 (Tehrani and Rainbird, 2005). Absences due to stress and mental problems significantly affect both the employer and the employees. This motion apparently has been taken for granted and unaddressed for sometime until the enactment of the harm diversity personation 1995 (DDA), Employment Ac t 2002, Employment Rights Act 1996, and the health and Safety at be keep plunk for etc Act 1974.This paper shall show the look by which the pertinent provisions of these pieces of legislation are applied to a hypothetical grounds and it shall likewise seek to identify and explain the remedies of an employee in nerve of infringement of the provisions. disabilitySickness Absence The Disability Discrimination Act 1995 defines disability as atomic number 53 having a physical or mental impairment which has a substantial and long-term adverse yield on his ability to carry out normal day-to-day activities (Section 1(1), array 1, DDA 1995).The Industrial Tribunal has applied the definition to the different berths brought forwards it. For instance, in the case of Greenwood v. United Tiles Limited the employee concerned was suffering from diabetes and was held to be change by the Tribunal (Greenwood v. United Tiles Limited 1101067/97/C). In the case of ONeil v Symm & connectio n Limited, the Tribunal mattered ME or chronic drop syndrome as a disability (ONeil v Symm & Company Limited, 2700054/97).Even ab pains which had no medical examination diagnosis with respect to its origin was tell as a disability by the Tribunal in the case of Howden v Capital Copiers (Edinburgh) Limited (400005/97) (Thompsons Solicitors mesh sprain site, 2007). Anent mental disability, Walton v LI convocation Limited case involved an employee who had learning difficulties. The Tribunal control that the employee is considered disable under the DDA basing its finale on the testimonial bear witness of the employees parents and the situation that the employee was receiving disability living allowance (Walton v LI Group Limited, 1600562/97).The increased awareness for mental health and issues associated with it has accelerated in time, clinical depression is in fact already considered as a disability. clinical depression is a common mood disorder in psychological science an d psychiatry in which a persons enjoyment of feeling and ability to function socially and in day-to-day matters is disrupted by intense sadness, melancholia, numbness or despair (Farlex Free Dictionary blade site, n. d. ).In the recent appealed case of OHanlon v Commissioners for HM receipts & Customs, the Employment Appeal Tribunal ruled that clinical depression is considered a disability and therefore falls within the c all overage of the DDA 1995 OHanlon v Commissioners for HM Revenue & Customs (2007) EWCA Civ 283. Applying the above discussed legal principles to the stipulation hypothetical case, Vangeer has been diagnosed to be suffering from clinical depression. This was brought about by the incident when she accidentally pricked herself with a needle which she picked up while cleaning a bus in the depot of her employer.This caused panic attacks and anxiety and for which she was given a year murder from represent. At this juncture, it is important to stress that the Heal th and Safety at Work etc Act 1974 requires the employers to ensure the health and safety of its employees in the place of work. Towards its realization, the virtue imposes upon the employer the duty to make the provision and maintenance of plant and schemas of work that are, so far as is reasonably practicable, safe and without risks to health (Section 2 (2)(a), HSWA 1974).This sum that Snail Pace Bus Company should countenance provided a system of work including protective gear for those who clean their buses (Health Safety Executive, 2006). In addition, the employer is alike supposed to take measures to protect their employee who whitethorn return to work considering that there is more likelihood that the employee may be weak because of the injury or disability (Health Safety Executive, 2006). Vangeer went on sickness absence for about a year. Sickness absence may be short term or long term.A long term sickness absence con nones austere medical reasons such as in the case o f Vangeer. Long-term absence is usually defined as a period of absence in excess of two weeks (Corcoran, 2006). When she returned for work, a new team leader make discriminatory remarks about her race. In hindsight, this may be considered as a violation of the Race Relations Act 1976. It may be shown that there is direct discrimination of Vangeer because she is black such as when she is tempered less(prenominal) favourably than another (Thompsons Solicitors, n. d. ).Moreover, it may be shown that there is some bring of harassment under the Race Relations Act 1976 as amend by the New Regulations of 2003 (Thompsons Solicitors, n. d. ). Harassment is broad as to include inglorious language, excessive monitoring of work, excessive criticism of someones work etc. (Thompsons Solicitors, n. d. ). It may be claimed that Vangeer suffered by because she was degraded, intimidated and her dignity violated. The violation of her dignity is subjective and the Tribunal would need to rule using the rationalness standard (Thompsons Solicitors, n. d.In this case, the effect of Bobs conduct has caused Vangeer to go on sickness absence for terce weeks more based on the recommendation of her psychiatrist. Her transfer to another team was also suggested. Even before the period of sickness absence has lapsed, Snail Pace Bus Company was bought by muted Coach Ltd. and Vangeer was called to a clash about her absence. at that placeafter, she was brush off from her trade with pay. Her carrier bag is illegal. In relation to long-term sickness absence, the employer who dismisses an employee faces ternion potential legal risks (Lemon & Co. 2008).Vangeer may file for a claim for unfair chemise, for disability discrimination and for violation of her contract of involution. It is axiomatic that there exists mingled with the employer and the employee, a contract of employment. It is an agreement whereby the rights and obligations of both the employee and the employer are specif ied (Direct. Gov electronic network site, 2008). When the employee allow ins employment, there is an automatic contract of employment that is created regardless of whether this has been reduced into composition (Direct.Gov sack site, 2008). Generally, employment contracts contain the following clauses commencement, term, job title and duties, place of work, hours of work, pay, holiday entitlement, pension, sickness absence, intellectual property, confidentiality, termination disciplinary, dismissal and grievance procedures, and embodied agreements(Clickdocs clear site, n. d. ). The terms of employment in respect of hours of work, pay, termination of employment and other benefits are provided by the statutes.This being the case, the employer is mandated to comply with the provisions of the statutes. For instance, dismissal procedures should be observed. In the blinking case, Vangeer was invited to a meeting to discuss her absence and after a day she was push aside from employm ent with pay. The Employment Act 2002, Part 3, Section 30 (1) provides that, Every contract of employment shall have effect to require the employer and employee to comply, in relation to any matter to which a statutory procedure applies, with the requirements of the procedure (EA 2002).The law requires that the employer observe the procedure in cases of dismissal as provided for under section 29, Schedule 2 statutory Dis rolle Resolution Procedures, Chapter 1 and 2. Substantially, the employer is required by law to put into writing the circumstances and acts of the employee which he led him to initiate disciplinary or dismissal steps and invite him to discuss it in a meeting. The employee moldiness have notice and reasonable opportunity to be apprised of the kindred. After the meeting, the employer moldiness inform the employee of his decisiveness and inform him of his right to appeal.Should the employee opt for an appeal, another meeting should be scheduled before the dismissal or the disciplinary penalization shall have been effective (Section 29, Schedule 2, Chapter 1, EA 2002). In the instant case, Vangeer apparently may have been given an un clean short notice and was not certain of her right of appeal if she was not satisfied with the decision. In retrospect, the jurisdiction over wrongful dismissal cases were lodged in courts until 1994 when jurisdiction was given to the Employment Tribunals which were appoint to grant only up to GBP25,000 (British Employment sack up site, 2007).A opposite word rule is observed with respect to unfair dismissals and discrimination cases, where the courts can swag greater amounts of monetary remedy. Wrongful dismissal results when employer fails to give the employee notice in symmetry with the employment contract and without appropriate pay (British Employment web site, 2007). It has been observed though that it is better for the employee to sue if the contract provides a fairly long notice period (British Employ ment web site, 2007).Monetary damages in these cases are computed based on the amount of loss in terms of compensation and other benefits. Unfair dismissal occurs when the employee is terminated from employment and the employer in doing so had no valid and justifiable reason (Direct. gov web site, 2008). The Employment Rights Act 1996, specifically Part X sections 111 to 132 provide for the remedies in case of unfair dismissal. In a nutshell, there are common chord options an order for reinstatement, an order for re-engagement or an order for compensation.Reinstatement is when the Tribunal orders the employer to put the employee blanket to work with the same position and assigned tasks. There is re-engagement when the employee is placed back to work with a new post and tasks but under the same employer ((British Employment web site, 2007). In cases where the Tribunal issues an order for reinstatement or re-engagement, it cannot also order compensation Wilson (HM Inspector of Taxes ) v Clayton (2003) EWCA Civ 1657. In the instant case, Vangeer was unlawfully dismissed because of her long absence.The Employment Rights Act 1996 provide for the employers responsibilities in case sickness absence and dismissal are due to ill-health (Mace & Jones web site, 2007). Bad health may be considered a good foothold for dismissal of an employee because it affects the ability and capacity of the employee to perform his assigned duties and tasks. The law mandates that in order for a dismissal based on ill-health can be considered as fair, the employer must(prenominal) observe and comply with the legal requirements (Mace & Jones web site, 2007).The employee must be given the reasonable opportunity to recover and return to work before they can be dismissed (Lemon & Co. web site, 2008). In the instant case, Snail Pace Bus Company gave Vangeer about a year to recover from her clinical depression. A return to work program was careworn up for her. Her relapse was instigated by her new manager. She was given a three week off from work and before the lapse of that time she was dismissed after the discussion with Slow Coach Ltd. Vangeer apparently was not given a reasonable opportunity to even use her three week off when in fact, the relapse was caused by management.However, it should be pointed out that not in all cases shall the employer be liable(predicate) even if he partially or wholly was responsible for the incapacity of the employee. In the case of McAdie v Royal Bank of Scotland 2007 EWCA Civ 806, the Employment Appeal Tribunal reversed the decision of the Employment Tribunal when it ruled that the dismissal was justified even if the employer, partly or wholly caused the employees incapacity because based on the medical evidence obtained there was no prospect of the employee returning to work McAdie v Royal Bank of Scotland (2007) EWCA Civ 806.Another requirement would be is for the employer to seek evidence of the medical status of the illness of the employee. The employer must petition for medical reports from the employees physician upon the authorisation of the former (Lemon & Co. web site, 2008). The employer may also request for the examination of the employee by the employers own physician. The meeting should be for purposes of assessing the incumbent medical state, the existing medical advice and medical evidence. In the case of Vangeer, Slow Coach Ltd. ailed to request the medical reports from her physician.Moreover, the employee must be consulted through a series of meetings for purposes of exploring ways and issues for alternative options and reasonable adjustments (Lemon & Co. web site, 2008). Albeit, there is one meeting conducted with Vangeer, no exhaustive discussion seemed to have been made. Finally, The employer must consider the possibility of making adjustments to the working environment in order to yield the employee to return to work (Lemon & Co. eb site, 2008).When Vangeer was ill the first time, the employer made a programme which allowed her to start work late and go home early. However in the case of relapse, the suggestion that she be re-assigned to a different team was not deliberated upon and carried out by Slow Coach Ltd. It is the responsibility of the employer to seek and accept suggestions from the employee on how she can work when she returns.In a complaint for unfair dismissal, the Employment Tribunal shall take the following factors into consideration nature of the employees illness, the likely duration of the illness, the nature of the job, the needs of the employer, the employees length of service, the persona (and amount) of sick pay paid to the employee and alternative employment (Lemon & Co. web site, 2008). The most important factor that will be considered is whether the employer took measures in gathering education and ascertaining medical reports from which he would base a fair and reasonable conclusion and decision.There must be recent, comprehensive and competent medical findings (Direct. gov web site, 2008). He must also comply with the procedures in dismissing an employee in accordance with the Employment Act 2002 and the Dispute Regulations 2004 (Direct. gov web site, 2008). Failure to follow the statutory minimum dismissal and disciplinary procedure shall make him liable to a minimum basic award of 4 weeks pay. Furthermore, any compensation awarded by an Employment Tribunal may increase by 10-50% (Direct. gov web site, 2008). There is no distinction between sickness absence and disability.In the case of Clark v Novacold (18901661/97) the Industrial Tribunal concluded that there should be no distinction between the two, and dismissal for sickness absence does in fact relate to the disability and accordingly is prima facie unlawful (Thompsons Solicitors web site, 1997). According to Solicitor Michael Corcoran, if the disability is the cause of the long term sickness absence and the employee was in fact dismissed, such dismissal is tantamount to discrimination unless it is shown that dismissal is justifiable (Corcoran, 2006).The lack of knowledge of Slow Coach Ltd. may have on the disability would be irrelevant and immaterial to the issue of whether Vangeer was treated less favourably (Corcoran, 2006). Under Section 20 of the Discrimination Disability Act 1995, direct discrimination is committed when the employee is treated less favourably than another not suffering from such disability and that such interposition is by reason of the employees disability (DDA 2005).Moreover, the employer shall also be liable if he failed to make reasonable adjustments so that the disabled employee can keep on his or her employment (HSE, n. d. ). The law requires that the employer go an extra mile for the disabled employee, albeit the law does not set parameters of its extent. However, case law has laid start legal principles based on each of the precedent-setting case (HSE, n. d. ).