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Question: Employment Law Assesment
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Introduction
The following paper aims to determine the employment practices in XYZ company and the various parameters such as Legal, regulatory and ethical considerations that are to be taken into account during the process of recruitment and the selection process of the candidates for the post of Sales Director. As it can be observed that during the process of selection, discriminatory procedures were adopted in the ultimate selection of Mike Replica. The changes that he proposes to implement for the Sales team have a number of complexities which can attract a legal complications for the company. It is vital that XYZ company implements ethical employment measures so as to avoid the legal risks for the company. Also, some to the recommendations will be made for securing the company in the future from making such mistakes.
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The legal risks that XYZ might be taking in following the course of action outlined in this case
With the retirement of Alan McSlick, XYZ decided to find his replacement internally. Thus a notice was sent to all the employees of the company that if they consider themselves as suitable candidates for the position, they can apply for the post of ‘Sales Director.' Four applications were received for the position.
The legal risks that XYZ could face in the below-mentioned issues are that these issues are in contravention of the Equality Act. This law tries to protect the people who are not treated equally in the companies and workplaces or because of some stereotype or prejudice; they are disadvantaged. This act protects the people from any kind of discrimination at the workplace and protects them from discrimination against disability, age, marriage, race, sex, maternity and pregnancy, religion and belief, gender reassignment and sexual orientation (Act, E., 2010. Equality Act 2010. The Equality Act.). The issues in rejection as well as selection of the candidates which are as follows:
1. Julie, being the first of the two female employees, in the sales department, was rejected for the only reason that she is a female. Although the management felt that she is capable for the post, the Sales team mainly comprised of male older employees, who would not like the idea of a female, and a younger one at it, to supervise and manage their work. This, they felt could have a negative impact on the older male customers that makes up the user group and they are comfortable in dealing with male employees of the company only.
Since this step by the company leads to discrimination at workplace, it attracts the provisions of the Employee Equality Act, 2010, which clearly prohibits discrimination at workplaces on the basis of sex. (Practice, 2011), for which reason she can file a suit against XYZ that she was being discriminated on the basis of sex and age (Dipboye, 2013). The senior management treated her in a less favorable manner than she would have been treated and she was not even given an opportunity to compete for this position. She was rejected straightly on the grounds that she was a younger employee and will not be able to handle the team of senior people and since she was a female so she won’t gel up with the male employees as well as the male customers of the company.
In O’Reilly V BBC & Ano2 2200423/2010(ET), it was claimed by O'Reilly that the people of her company discriminated against her due to her age and sex, and she was not given the job. The company BBC required people that were younger in age and it was held that The company was responsible for the discrimination in recruitment, and they discriminated against O'Reilly (Daniels, 2012).
2. Aldo Viscida was the second candidate for this position. He was also a very good candidate for this position. As a committed employee, he has many years of experience, besides winning a number of prizes for the company and bonuses for himself. His application was rejected due to poor English writing skills, and his job required that the incumbent had effective written English. So, even in the present case, the decision of the company was arbitrary without giving him a chance to improve his written skills or affording him a chance for explanation. On the other hand it is vital that the organization has to assist in the process of development of skills for employees and help them achieve their specific goals. Also, the reports could have been prepared by some assistant if he could have dictated the same. So he can claim that he was just not given the equal opportunity to handle the sales team (Player, 2014).
Secondly, the racial differences arose for the company in case of Aldo as he belonged to Milan, therefore violating the provisions of the Act, leading to racial discrimination. He, therefore has a right to claim appropriate legal remedies by filing a case against the XYZ company for violation of equality on basis of racial discrimination.
Derek Constant was the third candidate who was as old in the company as Alan but since he was about to get retired and his wife suffered from medical problems, the management thought that he would concentrate on taking care of his wife rather than focusing on the role that he will be given, and he will do his work with less energy and hard work.
As per the provisions of the 1998 Act, for persons aged between 18 and 65 years, there can be no discrimination that can be meted on to them on the basis of discrimination on the basis of age. (Moffatt, 2011) Here, Derek can claim that he was being discriminated by association which means that XYZ treated him in a less favorable manner because they associated him with a protected characteristic due to the illness of his wife. This is also a part of the Equality Act, and this act protects the person who is being discriminated by association, the violation of which can hold the company responsible for the act.
In Coleman v Attridge, the claimant was competent to perform the job, but she was being discriminated in the company as her son suffered from a disability and thus it was thought that she wouldn't be able to perform the job. The court held that she was eligible to get compensation from the company and the judgments were in favor of the claimant (Dipboye, 2013).
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The fourth was Mike Replica who was a professional person and was being considered as suitable for the position of a senior manager. Though he had innovative ideas to develop the team, but still he was selected for this position because he was married to the niece of Director of Finance and used to play golf with the Chief Executive of the company. The senior management stated that they are not selecting him for this reason, but they are choosing him because he had good ideas and he had the capability to take the sales team forward.
Though the candidate cannot pose any threat or risk to the company but the appointment of this candidate happened in an unfair manner (Okechukwu, 2014). Since there was no chance for the other employees and the competitors for this position can claim this, and they can pose a threat to the company on the grounds of discrimination and inequitable behavior. Also, ideas that he has given pose risk to the company as:
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Mike proposed the idea that the earnings for the employees would be wholly commission based, which means their salary would be based entirely on sales. In other words, the employees would now be at a risk of 100% of their wages coming from sales. As an arbitrary and unfair rule, this proposed idea given by Mike violates the provisions of the National Minimum Wages Act, 1998’ (Dispenza, 2012). The rule proposed by Mike is unfair and arbitrary and is not maintainable under law and on facts as the Employment Act, presupposes among other features that there is a minimum wage that is applicable to every category of workers, besides being entitled to bonus, tips and payroll. Besides, this act also commits the breach of contract, as the terms on which they were employed were completely different than what is being proposed. Secondly, the act also states that deduction of any kind is not maintainable unless it is permitted under the statutory or contractual obligations; and can be done so only after taking a written consent as required under law. The proposed policy by Mike neither meets any of these criteria nor is it authorized under law, for which the company could be held responsible. b) Mike also suggested that the poor performing members be dismissed from the company on the grounds of non-performance. The same may be treated as arbitrary and illegal, for which the company can be held grossly liable for violations of the Employment Act. The process leading to the dismissal of employees pre-supposes that either disciplinary action be taken and sufficient notice is given before dismissal. So, the company can face the risk of dismissing its employees in an unfair manner and not considering their reasons of poor performance which may be sickness, illness, or any other personal or professional issue (Masupe, 2012). Such gross dismissal can make the company liable under the unfair dismissal liability under the Employment Act.
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A policy was introduced that required the employees of the company to undergo medical checks regularly. But there is a risk to XYZ in this also as making them undergoing medical test may not be ethical. The employees can claim that the company is finding reasons to fire them like if they have the habit of smoking and the medical is negative due to this, then the company may dismiss them on the grounds of poor performance due to bad health. But in real, the performance was good and was not questioned till the company did not know about their smoking habit.
The defenses available for XYZ to deploy if an aggrieved employee or would-be employee decides to bring a tribunal case and the strength of the case that could be mounted
The proposed measures suggested by Mike as well as the selection procedures of the XYZ Company has caused violations of Employment Act. The burden of proof rests with the company, as it is the responsibility of the company to see that there Employment procedures and HR rules are fair and admissible under law and equity. The company XYZ does not have much to defend themselves because the case and the grievances of the employees are stronger than the defenses for the company. The company can only give justifications in the case of recruitment practices that it followed. The following justifications can be given by the company:
- Julie Keene was rejected for this position because she did not have adequate experience to handle this position and was too young to handle such senior position in the company. The company could probably, state the specific areas in her work process which require improvement, or point out the key weakness which could affect her job. By saying so, it can suggest ways to improve her skills and make arrangements for improvement of her skills, that could better her prospects in the company. The company can thus say that it did not discriminate against her on the basis of sex or age but due to lack of required experience.
- Similarly, in the case of Aldo Viscida too, the company by highlighting his weakness of poor language skills, could suggest means of improving his English and better communication methods. Since the company had to find a suitable candidate soon to replace the retiring director, so it did not have the time to train Aldo Viscida. Therefore his application got rejected and not because he was from some other origin.
- Derek Constant was rejected by the company because the sales team was very comfortable in working with him and they could talk to him openly. If he was promoted to director, he might not be able to communicate with them very often, and the morale of the employees would have declined. But the case of Derek Constant is very strong against the company because he was very deserving and had all the required qualifications as well as experience for this position. Therefore, this justification of the company may not work in this case.
- Then talking about Mike Replica, the company hired him because he was a professional person and he had innovative ideas to develop the team. With the changes that Mike Replica introduced in the company, it does not have enough defenses for that as all the changes that he introduced were unlawful.
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The criteria for payment suggested by Mike s arbitrary and are violative of the Employment Act as well as can lead to breach of contract by the company. It is therefore, vital to draw out a plan which suggests the earnings and commission ratio, so that it does not tamper the contract into which the employees had entered at the time of being hired by the company. The minimum wage act requires every company to pay a minimum wage to its employees which are set by the government, and it is mandatory for the companies to pay that. The deductions that he has decided to make are also unlawful; these are not allowed or covered under the payment of wages act. There are some authorized deductions that the employer can make the salary or wages of employees and the deductions decided by Mike are not covered in this (Barnard, 2012).
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The poor performing employees cannot be terminated arbitrarily as the company could face charges of unfair employment clause. This also creates a breach of contract between XYZ and its employees, for which the company could attract a number of legal hassles. Therefore, the company will not be able to do anything instead of paying the damages to the employees if they sue them (Barnard, 2012).
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The sales team members had to undergo medical checks regularly. This is also against the employment practices as the employers cannot force the people to go for medical tests every time. This is a breach of privacy, and this is not allowed in the employment law (Holland, 2015). Thus there are very few defenses that are available with XYZ to protect itself if anyaggrieved employee or a would-be employee decides to bring a tribunal case, and the strength of the case that could be mounted would be very strong against the company XYZ.
Advice to the senior management team when running an exercise of this kind in the future
The senior management is advised to do the following in the future:
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It is vital that the senior management is well versed with the Employment Act and the various provisions of the Equality provisions under the act. It is important to ensure that the HR practices are in tune with the principles of equity, which does not discriminate employees on the basis of sex, age or race. Even if the company does not hire anyone based on the eligibility criteria, then the company will have a reason to reject that applicant. It will save itself from any legal proceedings in the future. The company should also specify the procedure for selection so that all the potential candidates get a chance to prepare for it, and they don't feel that they were at some kind of disadvantage.
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The senior management should carry out the recruitment activity in a fair and justifiable manner. They should measure every employee on the same grounds like they can take the test, or interview them and should give equal chance to everyone to show their potential and strengths. The grounds of evaluation of the employees should also be same, and there should not be any bias when the evaluation takes place. The employees should not be discriminated on the grounds of age, sex, association, etc. as these discriminations are prohibited in the employment law.
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It is advised that the management should take care that no unauthorized deductions are made in the payment of wages or salaries of employees, and they should be paid as per the law. Only the authorized deductions that are mentioned in the law (Payment of wages Act) can be made by the company.The decision of the company to keep the 100% earnings of the employees at risk was not correct as they cannot deduct the entire amount of salary even if the performance of the people is poor. Poor performance does not always mean that the employee did not want to perform, it may be due to his personal or professional issues, or he may not be able to understand the work or any other valid reason. So, the company is advised to look into the matter of employees and resolve their issues either by making them understand the tasks or by providing them the necessary training.
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The company is also advised not to breach the terms of the contract as this is the necessity of the contract of employment that whatever terms and conditions regarding the payment of salaries and wages are decided during the contract formation must be adhered to and if the company want to change something in that, then they can do it but by taking the consent of the employees. The employees have many remedies if the company breaches the term of employment contract and then the company may have to pay the employees more compensation, so it is better that the terms are adhered to and changed as per the rules and law only. But in this case, the management did not consult anybody and changed the policies regarding the payments.
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Act, E., 2010. Equality Act 2010. The Equality Act.
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Barnard, C., 2012. EU employment law. Oxford University Press.
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Daniels, K., 2012. Equality Act 2010.
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Dipboye, R.L. and Colella, A. eds., 2013. Discrimination at work: The psychological and organizational bases. Psychology Press.
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Dispenza, F., Watson, L.B., Chung, Y.B. and Brack, G., 2012. Experience of Career?Related Discrimination for Female?to?Male Transgender Persons: A Qualitative Study. The Career Development Quarterly, 60(1), pp.65-81.
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Holland, J., Burnett, S. and Millington, P., 2015. Employment Law 2016. Oxford University Press.
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Masupe, T. and Parker, G., 2013. Equality Act 2010: Knowledge, perceptions and practices of occupational physicians. Occupational medicine, 63(3), pp.224-226.
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Okechukwu, C.A., Souza, K., Davis, K.D. and de Castro, A.B., 2014. Discrimination, harassment, abuse, and bullying in the workplace: Contribution of workplace injustice to occupational health disparities.American journal of industrial medicine, 57(5), pp.573-586.
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Player, M., 2013. Federal Law of Employment Discrimination in a Nutshell, 7th. West Academic.
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Young, H., 2010. Equality Act 2010.
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