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MODULE MOD003700: EMPLOYMENT LAW

The written assignment 010 has two questions, each of which consists of a scenario concerning problems which have occurred in a workplace. You are required to analyse and apply the law to the given problem, manage and communicate your evaluations appropriately and proffer advice/recommendations effectively. Both scenarios must be attempted and each is worth 50% of the total mark. You are advised to split the 2,500 word count evenly between the two (i.e. approximately 1,250 words for each scenario)/

For each of the two scenarios: Mark Learning Outcome

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. Appropriate recommendations on action to be taken and measures for future prevention of problem. 5% 1, 2, 3
4. Detail of presentation, including accurate referencing of cases, Statutes and other sources, use of Harvard referencing, spelling and grammar. 5% 1, 3
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%

You must use appropriate case law and legislation in order to support your answers.
Advice for students undertaking Assignment 010

Structure:
The advice should be in report format, with clear headings, paragraphs, sub-sections and numbering where appropriate. The reports should as a minimum have at least the following sections:

a) Introduction: A very brief outline of the key issues, background/situation in scenario etc. You do not need to repeat the facts of the scenario.
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, in both the short and long term.

Referencing:
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.

Word Count:
The word count should be entered on the cover sheet. The bibliography, reference lists and quotations longer than 50 words 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.

Answer BOTH of the problem scenarios.

Background information

Case Study Organisation

The Mercia Building Supplies Company operates from a number of sites in the East Anglia region. They supply materials, tools and supplies needed to complete all types of building work including timber, bricks, cement, kitchen units, plaster, paint etc. They have a fleet of delivery vehicles to deliver materials direct to building sites and customers. The company has a large depot covering an 8 acre site based in Harlow and has smaller depots in Braintree, Cambridge, Bury St Edmunds, Newmarket, Norwich, Thetford and Witham. They employ over 250 staff – 60 in administration and 20 drivers, whilst the remaining staff are sales and advisory staff at the seven sites.

The HR department consists of 2 HR staff – an HR Manager, you, and an HR Officer Julian Tyler, much of whose time is taken up with recruitment, staff record keeping and payroll administration. You joined the company as HR Manager 3 weeks ago when the HR Manager post was created. The department as such had not existed previously, it had consisted of the Company Secretary who oversaw the work of a Personnel Officer, Ryan Bennett. As the company has grown, the pressure has also grown to have a more focused HR presence. When the previous Personnel Officer retired a month ago the company decided to create a HR function. It has become clear to you that Ryan Bennett had only been able to keep on top of the day to day administration and that few HR policies and procedures exist. Those that do are out of date; for example, they have general disciplinary and grievance procedures which were produced by Ryan in 2002, along with a basic staff handbook. (Extracts from the disciplinary and grievance procedures are attached, along with an extract from the staff handbook). There are no appraisal or job evaluation systems in place for any of the levels of the organisation. Management training on the application of policies and procedures is rather patchy, particularly with regard to people management training in the outlying depots.

There is a standard format to most of the staff contracts, with Administration staff having “normal” working hours of 8 – 5 Monday to Friday. There are also a few “variations” to contracts at the various sites which have developed not only at the Depots but also at the Harlow main site, to meet specific organisational and personal requirements.

It is Monday afternoon and the following two issues have arisen.
You are asked to prepare reports which set out the legal issues that have arisen in the two scenarios and give your advice on the steps that should be taken by the company. All such advice and action must be underpinned by relevant employment law sources including case law.

Scenario One

The Manager of the Harlow site, Kiren Sunder, has telephoned to tell you that he has dismissed two members of staff and he asks you to deal with the necessary paperwork. The two individuals are Tom Parsons, a member of the sales team, and Beth Tyler, a buyer from the ironmongery department. Tom has worked for the company for many years and has a good service record. Beth joined you at Christmas, having come from a rival building supply company.

Last week, during the coffee break at a sales department meeting, Kiren was discussing with a colleague the difficulties of finding somewhere decent to stay overnight when visiting the Norwich site as it was too far to travel to and from in one day if there was an early morning or late afternoon meeting. Kiren’s colleague agreed and said that Tom was fortunate to not have that problem as he had a girlfriend who lived in Norwich who could put him up for the night if he needed to stay there. Kiren was surprised to hear this, as he had not heard any discussion of Tom’s possible girlfriend. He was also aware that Tom put in regular expenses claims for an overnight stay in a large hotel in the middle of Norwich each month when there was a regular sales meeting there.

Following this discussion Kiren tells you that he called Tom into his office on Thursday morning last week and told him that he suspected him of claiming expenses that he had not incurred. He suspended Tom from that moment and asked him to come in at 9.00am on Monday morning to attend a disciplinary hearing. On Thursday afternoon Kiren decided to carry out spot-checks on other workers’ expenses claims to see if this was a problem that needed more rigorous assessment of expenses claim. The claims that he checked seemed in order, apart from Beth Tyler’s. Beth had claimed expenses for travel to ironmongery wholesalers on dates which he understood that she was working at the Harlow site all day. Kiren telephoned Beth and accused her of submitting false expenses claims. He ended the conversation by telling her that she was suspended and he asked her to also attend a disciplinary meeting on Monday.

The hearings, each of which took about 20 minutes, were heard by himself and the Sales Manager and both members of staff categorically denied misleading the company. Tom admitted he had been staying with his girlfriend instead of at a hotel but stated that he believed he was entitled to an overnight allowance, which he claimed every month when he was staying in Norwich. Beth claimed that she had incurred the expenses but may have got her dates mixed up. After the hearings Kiren immediately called both of them into his office and told them they were dismissed because they had defrauded the company and could not be trusted. Both workers repeated that they had not knowingly claimed any expenses they were not entitled to. Tom, in particular, stated that he was “not going to take this lying down”.

Kiren tells you he feels that they have been deceiving him for some time and that they have ‘cheated’ the company. He says he believes he followed the disciplinary process in dismissing the pair, although he wonders if they should have been accompanied to the meeting by a colleague as both were on their own. You ask Kiren if he gave either of the workers a right of appeal but he says he doesn’t know ‘anything about appeals and technicalities’.

What legal issues do you think these dismissals raise and what will you do now?
Scenario Two

As you were about to leave the office for the day, two members of staff knocked on your door and asked if they “could have a brief chat.” You recognise these two ladies as Freya Mounsell and Olga Paternak, both from the ‘Construction Materials’ department. Freya is aged 25 and has been with the company for twelve months. She is a reliable worker and a very good salesperson. Olga has worked at Mercia Building Supplies for several years since she left school and has an excellent work record.

Freya and Olga tell you they are both upset about an incident that happened on the previous Saturday night. All of the members of the Construction Materials team (twelve workers in total, including the 2 ladies concerned) were invited to the Regional Awards dinner for the most successful sales team in the building supplies industry. This is a prestigious award in your industry and the whole team was delighted to be short-listed and invited to the dinner. After the dinner the audience was treated to an after-dinner performance by a well-known comedian – Frankie Steyn. There were very few women at the dinner and half-way through his performance the comedian started to make rather ‘risqué’ jokes about women. He referred several times to the two ladies, pointing at them and he seemed to target them as subjects for ridicule. At one point he walked down from the stage and stood behind them, telling jokes which belittled women in general. This really disturbed Freya and Olga and they retreated to the ladies powder room. After a while, when they thought he probably would have finished his performance, they returned to the restaurant. The manager of their team, Tony Richards, lent over the table and asked what was wrong with the pair as they looked ‘a bit glum.’ When they said that they were very offended by Frankie Steyn, as they felt he had deliberately embarrassed them, Tony told them they were making ‘a fuss about nothing’. He said “everyone knows the sort of jokes that Frankie makes – he’s always the same – it’s just a bit of banter.”

The Construction Materials team went on that evening to win the Regional Award. This means that they are eligible for the National Sales Award which will be given at a further celebratory dinner in London next month.

This morning Freya and Olga were asked into Tony’s office. He said that he was very disappointed in their behaviour and attitude on Saturday evening and was surprised as he thought they would have relished the ‘treat’ of being involved with a successful team at an enjoyable evening function. He has decided that, as they did not seem to appreciate the event and created a difficult atmosphere at their table following Frankie Steyn’s act, they should not be invited to attend the National Award celebration in London. Two male members of the administration staff would be given the opportunity to attend instead.

Freya and Olga feel that their sales records are excellent and the sales award the team has won is mainly due to their excellent performance this year. They think it unfair that they cannot take part in a celebration that they are entitled to take part in. Both are aggrieved about the situation and ask you what you can do about it.

Further Case Scenario Background Information:

Mercia Building Supplies 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.

2) Principles

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.

4) Appeals

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.
Mercia Building Supplies 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.

Stage 1

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.

Stage 2

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.

Stage 3

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.

Stage 4

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.
Extracts from Mercia Building Supplies Staff Handbook:

“Sickness absence reporting:

All members of staff who are unable to attend work because of illness must telephone into their depot and speak to their line manager by no later than 10.00 am on the first morning of illness. If the illness is likely to last more than 1 week (6 continuous working days) then a doctors’ certificate is required. If an employee is unable personally to telephone in, then they can ask another person – i.e. relative or spouse, to call in on their behalf.

Failure to notify the company as above may be treated as unauthorised absence under the disciplinary procedure”.

“Holidays:

All members of staff are entitled to 20 days paid holiday a year, plus all official Bank Holidays. The holiday year is from 1 October to the 30th September annually. All requests to take leave must be approved by your Manager, and will not normally be refused unless the needs of the service require you to work. To avoid any possible disappointment, you should always clear holiday dates with your Manager well in advance before making bookings or travel arrangements. Holiday entitlement must be used by end of each holiday year.

Your Manager will advise you if, for operational reasons, you are required to take leave at certain times of the year. However, due to the nature of our business there is an expectation that, where possible, the majority of your holiday entitlement will be taken during the months of July and August as these are the slowest business months for the Company.

If your employment begins or ends part way through the leave year, your holiday entitlement for that year will be calculated on a pro-rata basis for each complete calendar month of service”.

“Other Absence: Special Leave or temporary changes to working times

If employees have domestic, family or personal reasons, then unpaid leave of a short duration may be allowed at the discretion of your manager. If there are domestic, family or personal reasons for changes in your working times, these should be discussed and agreed with your Manager.”
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