'Employment Law Essay\r'

' early on this form, in that respect be reports that the number of employees calling in anxious has risen to staggering levels. According to an absence management company, there are ab turn out 3. 6 million employees who called in sick the first flirt calendar week of January (Pitcher, 2008). The join Kingdom ranked as mho as having the most number of employees with dogged esteem infirmity in a survey conducted by the European Community (Tehrani and Rainbird, 2005).\r\nThe level of absence for UK was 27. 2% as against an average of 16. % of the European Union (Tehrani and Rainbird, 2005). An pugnacious figure of 14. 1 million days ‘were disoriented to striving and anxiety in 2001” (Tehrani and Rainbird, 2005). absence seizures due to stress and genial problems signifi brush asidefultly affect both the employer and the employees. This motion evidently has been taken for granted and unaddressed for sensation clipping(prenominal) until the enactme nt of the Disability diversity Act 1995 (DDA), participation Act 2002, Employment Rights Act 1996, and the Health and refuge at Work etc Act 1974.\r\nThis paper shall arrangement the manner by which the pertinent provisions of these pieces of lawmaking are applied to a hypothetical slip-up and it shall as well adjudicate to identify and explain the remedies of an employee in shield of violation of the provisions. Disabilityâ€Sickness Absence The Disability Discrimination Act 1995 defines handicap as one having a ‘physical or cordial impairment which has a substantial and long-term perverse effect on his ability to carry out normal daily activities’ (Section 1(1), divorce 1, DDA 1995).\r\nThe Industrial motor hotel has applied the definition to the different eccentrics brought to begin with it. For instance, in the side of Greenwood v. United Tiles Limited; the employee concerned was distraint from diabetes and was held to be disabled by the motor inn (Greenwood v. United Tiles Limited 1101067/97/C). In the reason of O’Neil v Symm & deoxyadenosine monophosphate; Company Limited, the royal court considered ME or chronic fatigue syndrome as a deadening (O’Neil v Symm & angstrom unit; Company Limited, 2700054/97).\r\nEven type AB pains which had no medical exam diagnosis with respectfulness to its origin was declared as a deadening by the Tribunal in the case of Howden v Capital Copiers (Edinburgh) Limited (400005/97) (Thompsons Solicitors nett site, 2007). Anent mental disability, Walton v LI Group Limited case twisting an employee who had learning difficulties. The Tribunal decreed that the employee is considered disabled nether the DDA basing its conclusion on the testimonial evidence of the employee’s parents and the detail that the employee was receiving disability living allowance (Walton v LI Group Limited, 1600562/97).\r\nThe accessiond awareness for mental health and issues associated wi th it has accelerated in time, clinical feeling is in fact already considered as a disability. Clinical depression is a ‘common belief dis point in psychology and psychiatry in which a person’s enjoyment of livelihood and ability to function socially and in day-to-day matters is disrupted by intense sadness, melancholia, numbness or despair’ (Farlex Free Dictionary vane site, n. d. ).\r\nIn the recent conjure uped case of O’Hanlon v Commissioners for HM Revenue & Customs, the Employment entreaty Tribunal ruled that clinical depression is considered a disability and therefore falls within the c everyplaceage of the DDA 1995 [O’Hanlon v Commissioners for HM Revenue & Customs (2007) EWCA Civ 283]. Applying the above hold forthed sub judice principles to the inclined hypothetical case, Vangeer has been diagnosed to be crucifixion from clinical depression. This was brought around by the incident when she by luck pricked herself with a needle which she picked up while cleanup position a bus in the depot of her employer.\r\nThis caused timidity attacks and anxiety and for which she was devoted a year clear up from mesh. At this juncture, it is important to stress that the Health and gumshoe at Work etc Act 1974 requires the employers to ensure the health and in force(p)ty of its employees in the place of twist. Towards its realization, the law imposes upon the employer the handicraft to make ‘the provision and maintenance of plant and brasss of work that are, so far as is reasonably practicable, safe and without risks to health’ (Section 2 (2)(a), HSWA 1974).\r\nThis means that Snail tread Bus Company should bring on provided a system of work including encourageive gear for those who clean their buses (Health refuge Executive, 2006). In addition, the employer is as well as supposed to take measures to protect their employee who whitethorn succumb to work considering that there is much l ikelihood that the employee may be weak because of the impairment or disability (Health Safety Executive, 2006). Vangeer went on sickness absence for just about a year. Sickness absence may be short-change term or long term.\r\nA long term sickness absence connotes serious medical reasons such as in the case of Vangeer. Long-term absence is ‘ ordinarily defined as a intent of absence in excess of two weeks’ (Corcoran, 2006). When she returned for work, a new-fashioned squad leader do discriminatory remarks about her race. In hindsight, this may be considered as a violation of the Race likenesss Act 1976. It may be sh let that there is direct discrimination of Vangeer because she is scurrilous such as when she is treated slight favorably than another (Thompsons Solicitors, n. d. ).\r\nMoreover, it may be shown that there is many form of harassment under the Race Relations Act 1976 as amended by the tonic Regulations of 2003 (Thompsons Solicitors, n. d. ). Har assment is broad as to include ‘ shameful language, excessive monitoring of work, excessive criticism of individual’s work etc. ’ (Thompsons Solicitors, n. d. ). It may be depute that Vangeer suffered by because she was degraded, intimidated and her self-regard vio new-maded. The violation of her dignity is subjective and the Tribunal would need to rule employ the ‘ rationalness’ standard (Thompsons Solicitors, n. d.\r\nIn this case, the effect of bob’s conduct has caused Vangeer to go on sickness absence for three weeks more found on the recommendation of her psychiatrist. Her transfer to another team was as well as suggested. Even before the period of sickness absence has lapsed, Snail pacing Bus Company was bought by slow autobus Ltd. and Vangeer was called to a concourse about her absence. Thereafter, she was dismiss from her study with pay. Her carrier bag is il jural. ‘In sexual intercourse to long-term sickness abs ence, the employer who dismisses an employee faces three potential legal risks’ (Lemon & Co. 2008).\r\nVangeer may file for a claim for unsporting carrier bag, for disability discrimination and for violation of her extort of appointment. It is axiomatic that there exists between the employer and the employee, a wring of employment. It is an agreement whereby the rights and obligations of both the employee and the employer are specified (Direct. Gov network site, 2008). When the employee accepts employment, there is an automatic withdraw of employment that is created no matter of whether this has been reduced into authorship (Direct.\r\nGov wind vane site, 2008). Generally, employment contracts give 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 corrective, dismission and grudge agencys, and collective agreements’(Clickdocs web 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.\r\nThis being the case, the employer is mandated to comply with the provisions of the statutes. For instance, exit procedures should be observed. In the instant case, Vangeer was invited to a meeting to discuss her absence and after a day she was dismissed from employment with pay. The Employment Act 2002, Part 3, Section 30 (1) provides that, ‘Every contract of employment shall take a crap 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).\r\nThe law requires that the employer observe the procedure in cases of dismissal as provided for under section 29, scroll 2 Statutory Dis aime 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 disciplinal or dismissal steps and invite him to discuss it in a meeting. The employee essential have see and clean opportunity to be apprised of the corresponding. After the meeting, the employer moldiness inform the employee of his decision and inform him of his right to appeal.\r\nShould the employee pick out for an appeal, another meeting should be scheduled before the dismissal or the disciplinary penalty shall have been effective (Section 29, Schedule 2, Chapter 1, EA 2002). In the instant case, Vangeer apparently may have been given an unfairly short notice and was not informed 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 authorised to grant only up to GBP25,000 (British Employment web site, 2007).\r\ nA contrary rule is observed with respect to unfair dismissals and discrimination cases, where the courts can award greater amounts of monetary damages. Wrongful dismissal results when employer fails to give the employee notice in unison 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 Employment web site, 2007).\r\nMonetary damages in these cases are computed base on the amount of mischief in terms of payment and other benefits. dirty 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 three options: an severalise for reinstatement, an order for re-engagement or an order for compensation.\r\nReinstatement is when the Tribunal orders the employer to put the employee back 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 quizzer of Taxes) v Clayton (2003) EWCA Civ 1657]. In the instant case, Vangeer was unlawfully dismissed because of her long absence.\r\nThe Employment Rights Act 1996 provide for the employer’s responsibilities in case sickness absence and dismissal are due to ill-health (Mace & Jones web site, 2007). incompetent health may be considered a good enough basis for dismissal of an employee because it affects the ability and capacity of the employee to transact 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 essential observe and comply with the legal requirements (Mace & Jones web site, 2007).\r\nThe employee must be given the sensible 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 programme was drawn 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 educate 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.\r\nHowever, it should be pointed out that not in all cases shall the employer be liable even if he part or wholly was responsible for the incapacity of the employee. In the case of McAdie v imperial 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 employee’s 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].\r\nAnother requirement would be is for the employer to seek evidence of the medical status of the illness of the employee. The employer must request for medical reports from the employee’s physician upon the warrant of the former (Lemon & Co. web site, 2008). The employer may also request for the examination of the employee by the employer’s own physician. The meeting should be for purposes of assessing the current medical state, the exist medical advice and medical evidence. In the case of Vangeer, Slow posture Ltd. ailed to request the medical reports from her physician.\r\nMoreover, the employee must be consulted through a series of meetings for purposes of exploring ways and issues for alternating(a) 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(a) environment in order to permit the employee to return to work’ (Lemon & Co. eb site, 2008).\r\nWhen 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.\r\nIn a complaint for unfair dismissal, the Employment Tribunal shall take the following factors into consideration: ‘ temper of the employee’s illness, the likely duration of the illness, the nature of the job, the needs of the employer, the employee’s length of service, the type (and amount) of sick pay paid to the employee and alternative employment’ (Lemon & Co. web site, 2008). The most important factor that depart be considered is whether the employer took measures in gathering information and ascertaining medical reports from which he would base a fair and reasonable conclusion and decision.\r\nThere must be recent, citywide 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). misery to follow the â€Å"statutory negligible 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 trace between sickness absence and disability.\r\nIn 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 carry on 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).\r\nThe 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 move when the employee is ‘treated less favourably’ than another not suffering from such disability and that such interposition is by reason of the employee’s disability (DDA 2005).\r\nMoreover, the employer shall also be liable if he failed to make reasonable adjustments so that the disabled employee can continue his or her employment (HSE, n. d. ). The law requires that the employer ‘go an extra statute mile’ for the disabled employee, albeit the law does not set parameters of its extent. However, case law has laid down legal principles based on each of the precedent-setting case (HSE, n. d. ).\r\n'