Case Study Of Employment Relocation

There are three issues involved. The first issue is whether Flights R Us can relocate the five check-in staff and ten baggage handlers from Cardiff to Bristol airport. In other words, whether all members of staff are entitled to refuse to be relocate from Cardiff to Bristol airport on the ground that this will increase their daily travelling time by up to one hour in each direction, despite being offered a pay for any additional travelling expenses for a period of two years. First of all it is important to know if the contacts of employment for those member staff subject to relocation have mobility clauses. A contract of employment may contain a clause which requires an employee to work anywhere in the UK. If such clauses exist in the contacts, the issue is whether Flight RUs is entitled to invoke them in relation to the five check-in staff and ten baggage handlers. It was held in Home Office v Evans and Another [1] that an employer is entitled to invoke contractual mobility provisions to transfer staff to alternative locations on the closure of an office and is not obliged to follow redundancy procedures which were not engaged because it did not dismiss or propose to dismiss staff. Therefore, if the contracts of employments contain mobility clauses, Flight RUs would be entitled to invoke them in relation to the five check-in staff and ten baggage handlers. Flights RUs would not be obliged to follow redundancy procedure because it does not dismiss or propose to dismiss the said staff.

Where there is any doubt in the language the courts, in interpreting such clauses, adopt a test of reasonableness. Thus, in Briggs v ICI, [2] a clause that “you will accept the right of management to transfer you to another job with a higher or lower rate pay whether day, night work or shift work", was held to “only entitle management to transfer the process worker to another job within Billingham factory and only as a process worker." Where the clause providing for mobility is clear and unambiguous, the courts will not imply an element of reasonableness into the clause. [3] When dealing with the mobility clauses, Flights R Us should not exercise their discretion in such a way to prevent the members of staff from being able to carry out their parts of the contract. [4] Where there is no reasonable or sufficient ground for requiring the five check-in staff and ten baggage handlers to relocate, there would be a breach of contract. Flights R Us may argue that they are reluctant to recruit new staff for Bristol as they feel that the employees at Cardiff are not working at full capacity and that the re-distribution of staff would be more efficient.

However, if there are no mobility provisions in their contracts of employment, five check-in staff and ten baggage handlers may rely on section 139(1)(b) of the Employment Relations Act 1996 (ERA 1996)by arguing that their jobs have been made redundant by way of reduction in the size of the workplace. According to section 139(1) (b), it is a dismissal for redundancy where the requirements of that business for employees to carry out their current work or to carry out work of a particular kind in the place where the employee was employed by the employer have ceased or diminished or are expected to cease or diminish. This is where, for whatever reasons, the employer wants fewer employees doing a particular kind of work. There need not necessarily to be less work to be done. [5] Flight R Us may just have decided to minimise costs by reducing staff and making those remaining at Cardiff to do more work. As long a the five check-in staff and ten baggage handlers are dismissed as the result of Flight R Us’ diminished requirements at Cardiff, the staff are dismissed for redundancy, regardless of what kind of work they actually did or could be required to do in their contracts. [6] 

However, Flights R Us could argue that they have not or are not intended to dismiss the five check-in staff and ten baggage handlers because it has offered to pay any additional travelling expenses for a period of two years for the employees subject to relocation. If Flight R Us is prepared to offer to pay travel expenses and for time spent travelling, this may help to indicate the relocation is suitable. However, if the staff members subject to relocation have domestic responsibilities it may be reasonable for them to refuse the relocation to Bristol which will mean a greater time away from home. Similarly, any member staff with an employed spouse who cannot easily move, and/or children at a critical stage of schooling may reasonably refuse Flight R Us’ generous relocation package. However, these are not the reasons raised by members of staff in refusing relocation to Bristol. Their argument is that the relocation will increase their daily travelling time by up to one hour in each direction. Accordingly, Flight R Us is advised its wishes to relocate five check-in staff and ten baggage handlers from Cardiff to Bristol airport will more likely to be considered suitable because the company is prepared to help financially otherwise with the move.

The second issue is whether Amy has a valid legal action for discrimination against Flight R Us. The law against discrimination covers both pre-employment discrimination and post-employment discrimination. This is an issue relating to pre-employment discrimination. A job applicant can make a discrimination claim if s/he was put off applying for the job by reason, for example, the way the interview was set up, the questions asked during the interview, or being left off a short list. [7] Accordingly, Flights R Us is advised that the fact that Amy was not employed by the company, does not bar her from bringing a discrimination claim against the company simply because the law against discrimination covers the discrimination operation of arrangement for selection as well as discriminatory selection. [8] 

Amy attributes her unsuccessful application to the reaction she received at interview when asked about her age and also whether she would be able to do more to cover up “the unsightly scar" on her face which she sustained in a serious car accident some years before. The Employment Equality (Age) Regulations 2006, which implements the Framework Employment Directive, [9] make discrimination unlawful where it is based on the claimant’s age or membership of a particular age group. Membership of a particular age group is defined as “a group of persons defined by reference to age, whether by reference to a particular age or a range of ages." [10] The Regulations also make it unlawful to discriminate on grounds of a person’s apparent age. Flights R Us is therefore advised that, unless there was a genuine occupational requirement or a genuine occupational qualification to reject Amy’s application, she can bring age discrimination claim against the company if she can prove that her unsuccessful application was due to her being 19 years old or belonging to a membership of a particular age group.

Flights R Us is also advised that the fact that Amy asked whether she would be able to do more to cover up “the unsightly scar" on her face which she sustained in a serious car accident some years before could amount to harassment. Harassment is an unwanted conduct related to the protected reason which has the purpose of effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating, or offensive environment. [11] Flights R Us is advised that harassment is now a free standing head of discrimination in that it will not be necessary for Amy to get involved in speculative comparisons with how the interviewer might have might have behaved towards someone without the protected characteristic. The harassment will be judged from the Amy’s point of view and she would not be required to show that there have been detrimental consequences for her. However, unless the interviewer had the purpose of committing harassment, the words said by such interviewer will only be regarded as having the harassing effect, if having regarding to all circumstances, including in particular Amy’s perception, it should reasonably be considered as having that effect. If harassment is established, Flights R Us would be vicariously liable for the acts of its employees who interviewed Amy. [12] 

The third issue is whether Ben can challenge the warning and Charlie the dismissal. The law relating to unfair dismissal requires employers to act reasonably when dealing with disciplinary issues. A reasonable behaviour, a matter for employment tribunals to decide, depends on the circumstances of each case. The ACAS Code of Practice on Disciplinary and Grievance Procedures (Code) sets out principles for handling, inter alias, disciplinary situations in the workplace. The Code requires employers to set up a disciplinary procedure in writing which should bear the principles of fairness and which should be made available to employees so that they can know what is expected of them. According to the Code, whenever a disciplinary process is being pursued both employer and employee should deal with the issues promptly and consistently. The employer should carry out an investigation, inform the employee the basis of the problem and be given the opportunity to challenge the allegations before decisions are reached and should also be provided with a right to appeal.

Before imposing a disciplinary penalty the Code requires employers to give an employee an improvement note in cases of unsatisfactory performance. This could be followed by a first formal action in the form of a written warning. The employer may issue a final warning if the employee has not improved. A final warning could also be issued where the first offence misconduct is serious but is not enough to warrant dismissal. If the employee has received a final written warning any further misconduct may warrant dismissal. A different disciplinary penalty such as disciplinary transfer, disciplinary suspension without pay demotion, loss of seniority or loss of increment may also be considered but subject to the employee’s contract or his/her agreement.

It appears that Flights R Us did not follow or comply with the Code before imposing disciplinary action upon Ben and Charlie. Nether notice was given to Charlie for the dismissal. However, the Code states that there may be occasions when, depending on the seriousness of the misconduct involved, it will be appropriate to consider dismissal without notice if, despite warnings, conduct does not improve within the specified time period. The fact that Charlie was not given any prior warning before the dismissal may go against the company. The company may still argue that it considered Charlie guilty of gross misconduct and thus liable for summary dismissal. However, the Code insists that even where there is gross misconduct, it is still important to follow a fair procedure as for any other disciplinary offence. This should have included the company establishing the facts of the case before taking any action, holding a meeting with Ben and Charlie and allowing them the right of appeal. In addition and contrary to the Code, no details of any disciplinary action was given in writing to Ben and Charlie as soon as the decision was made.

Basing on the above analysis, Flights R Us is advised that Charlie can make a claim to an employment tribunal for unfair dismissal. Even on allegation of gross misconduct, Flights R Us should have followed a fair investigative and disciplinary procedure. If Charlie’s claim is successful, the tribunals can increase any compensatory awards made by up to 25% for failure of the company to comply with the Code. [13] As for Ben, he cannot bring a claim for unfair warning because unfair warnings with no actual or constructive dismissal cannot usually be legally challenged unless they are discriminatory or an unlawful detriment. Ben may still raise a grievance with the company on the way the matter was handled.

TASK B

SKELETON ARGUMENT

INTRODUCTION

The Claimant, Mr. Jack Dooley was employed by the Defendant as a joiner from 6th June 2006. The Defendant is a small firm which makes bespoke kitchens, fitted wardrobes and so on. The Claimant worked with other two employees in the Defendant’s workshop, one being Mr Charlie Lockhart, the son of the Defendant’s proprietor and the other Mr. Tom Gleadall.

During the autumn of 2009, the Claimant and the other employees began to have problems with the planer – thicknesser; an important machinery which kept breaking down despite being fixed.

On 8th December 2009 the proprietor of the Defendant, Mr Freddie Lockhart informed the Claimant and Mr. Gleadall that a report from the manufacturer has proved that the machine was being deliberately sabotaged. Mr Lockhart thought the Claimant and Mr. Gleadall were behind the sabotaging and gave them until the following day to come up with the person responsible or otherwise they would both be sacked.

The Claimant and Mr. Gleadall had thought that the sabotage could have been done by Mr. Lockhart’s son due to the fact that he did not like working for the Defendant. He wanted to be an accountant but the Claimant thought that Mr Lockhart had bullied him into coming to work for him.

On 9th December 2009 Mr Lockhart called the Claimant and Mr. Gleadall into his office separately about the matter but Claimant denied to have sabotaged or know anyone who might have been sabotaging the machine. On the same day, the Defendant, without notice, dismissed the Claimant and Mr. Gleadall, but not his son, for the alleged sabotage.

THE CLAIM

The Claimant makes claim against the Defendant for unfair dismissal

ARGUMENT FOR THE CLAIMANT

In dismissing the Claimant, the Defendant failed to comply with section 3 of the Employment Act 2008 and the Statutory Code of Practice on Discipline and Grievance (hereinafter the Statutory Code).

Under the Statutory Code the Defendant was required to set up a disciplinary procedure in writing which should bear the principles of fairness and which should have been made available to the Claimant so that he could have known what was expected of them.

The Defendant failed to carry out an investigation in accordance with the Statutory Code and also failed give the Claimant the opportunity to challenge the allegations before reaching the decisions.

According to the Statutory Code, even if there was gross misconduct, it was still important for the Defendant to follow a fair procedure as for any other disciplinary offence. This included the Defendant establishing the facts of the allegation before taking any action, holding meeting with the Claimant and allowing the Claimant to appeal.

In addition and also contrary to the Statutory Code, the Defendant did not give Claimant any details of any disciplinary action in writing as soon as the decision was made.

ORDER SOUGHT

The Claimant respectively asks for an order for compensation against the Defendant for unreasonable and unfair dismissal.

The Claimant also asks the tribunals to increase any compensatory awards up to 25% in accordance with section 3 of the Employment Act 2008 for failure of the Defendant to comply with the Statutory Code.