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Recruitment Process of Domiciliary Worker
Terms Of Reference
In this case I am asked to advise my client Dan and a draft report in order to assist him in the recruitment process of new post of “domiciliary worker” and to outline the various legal standards, expectations and possible solutions in relation to the forthcoming recruitment exercise. I am also being asked to provide some legal procedure in order to avoid basic employment relationship mistakes in the future.
The purpose of this report is to assist Dan on his future recruitment process how he can use related legislation to avoid discrimination on all grounds and also use of some simple Human resource practice to improve performance. Online textbooks, relevant legislation and case law have been followed to complete this project report. In the Start of the report advice on future recruitment exercise has been given after that Alison's mistreatment, advice and support for employees and employers, brief overview of grievance and disciplinary procedures and in the end recommendation has been provided.
Advice On Recruitment Exercise
It is my view that the main structure of Dan's recruitment exercise looks weak. There are few things which can be made to improve the recruitment process with in the legal boundaries. The employment contract forms the basis of the relationship between the employer and their employee; which was the biggest flow in Dan's recruitment process. Following are some advices on future recruitment exercise;
Development and implementation of the correct policies and procedures are essential to ensure that the recruitment process achieves aims in a coordinated manner. For this purpose the correct job analysis is very important for any job. Applicants should know that which activities are performed and what skills are required for the job. Job description is important element in term of recruitment process it explains the true nature of the job. Following elements are commonly found in job description;
- Job title
- Reporting structure
- Purpose of the job
- Major duties
These are the important elements of a job description. Therefore I advise that in order to recruit the best suitable person for the job the description and advertisement should be clear. Why because those who have the ability and enough qualification which accomplish the requirement can only apply for the job and also all recruitment methods should be performed with in the legal boundaries which reduce chances of discrimination and furthermore employer also needs to consider section 38 of The Sex Discrimination Act 1975 and section 29 of The Race Relations Act 1976. It is employer's responsibility to be care full with job advertisement because discriminatory advertisement is form of direct discrimination. An interesting example of a situation where an employer tried to get around this rule is the case of London borough of Lambeth (appellants) v. Commission for Racial Equality (respondents) (1990) which is explained in the appendix 1 of the report.
Discrimination in the workplace may take various forms. When new job vacancies arise employers may discriminate in the way that they choose to advertise them. Their application forms or selection tests may be drafted in such a way so as to discriminate against some applicants. In the case of recruitment of Christian faith applicants and ignoring applicant with a disability clearly leads towards violation of two anti discrimination laws The Employment Equality (Religion or Belief) Regulation 2003 and The Disability Discrimination Act 1995. “The Employment Equality (religion or Belief) Regulation 2003 outlaws discrimination against employee or independent contractors on the grounds of religion, religious belief, or similar philosophical belief” also Regulation 3(1)(b) of the Act. Favouring Christian faith applicants is clearly form of direct discrimination because applicants has been ignored with other religious believe and thoughts, they might also have knowledge about Christianity ignoring them is not equality in recruitment process. As we know it's a Christian faith based charitable organisation so my advice will be that interview structure should be totally based on Christian religion and future recruitment should be made on the basis of knowledge of the religion not on the individual's faith. Because the applicant with enough knowledge and qualification will get the job not on the basis of religion. An interesting example of a situation where an employer tried to get around this rule is the case of Koppi v Austria (2009) which is explained in the appendix 2 of the report. On the other hand The Disability Discrimination Act 1995 outlaws discrimination against disabled persons. Any person who has a disability is regarded as disabled. If the applicant with spondilitis is refused deliberately omitting to offer employment then it's a direct discrimination. To avoid this sort of situation in the future I will advice that there should be some sort of physical task which test strength of individual but we have avoid any offensive environment which can easily effect disabled person's dignity . A disable person must not realise that he/she has been targeted.
This Section will discuss Alison's mistreatment and how she has been discriminated. The flows in Human Resource are identified late in this section which caused this problem of unfair treatment and also availability of advice and support for employees and employers has been listed below in this section.
Discrimination And Unfair Treatment
There are number of issues which need consideration in Alison's case. The following are those issues;
- Alison was hired as a cook but she was forced to work as an accounts secretary, which means there was a change in terms of employment contract. As employment contracts are subject to ordinary contractual rules. If the parties wish to change a term or terms in the contract, they must both agree to any change. But in Alison's case both parties didn't agree to any change in-fact she was working time to time unwillingly as an accounts secretary. There cannot be a one-sided change in which one party agrees and the other not in a contract term. Here Dan has changed main term of the contract, by which he breached a contract and Alison had the option in first place to resign and make a claim of a constructive dismissal or she can also claim damages for the breach.
- Dan clearly lacked managerial skills when it comes to employee involvement because employee involvement is widely used to achieve employee commitment and engagement, leading to the high performance workplace which is necessary to maintain and improve levels f productivity. Alison didn't had the full confidence on Dan's managerial skills and power as She stated to Dan “you never say anything to help me” which is clearly an indication of low motivation and employee involvement. Dan was also not fulfilling the role of line manager because he was not aware of Darren's unfair behaviour towards Alison. By being a Line manager of the organisation it is Dan's job to developed a process management plan to improve organisation, team and individual performance.
- In every work place equality and diversity are major issues that affect everyone. All employees, current and potential have a right not to be discriminated against unfairly and blocked in their careers for reasons that have nothing to do with their abilities in relation to their work. Alison suffered victimisation and harassment both from Dan and Darren. The Sex Discrimination Act 1975 regards a person as having been victimised if the employer treats that person less favourably than he would treat any other person, clearly Dan treated Alison less favourably compare to Darren because Alison claimed that Dan never helped her, which show that its violation of The Sex Decimation Act 1975 and also violation of The Equal Treatment Amending Directive (EC 2002/73).The Employment Equality (Sex Discrimination) Regulation 2005 have introduced a statutory definition of harassment. The definition describes harassment as unwanted conduct which is intended to have, or has the effect of violating person's dignity or creating an intimidating, hostile , degrading , humiliating or offensive environment for that person. Alison has suffered both indirect and direct discrimination. Victimisation would be indirect discrimination and harassment would be direct discrimination. Alison also suffered direct racial discrimination from Darren, which violated The Race Relation Act 1976 . An interesting example of a situation where an employer tried to get around this rule is the case of Ahsan v Watt (formerly Carter) (sued on behalf of the Labour Party) (2007) is explained in the appendix 3 of the report.
- Sometimes an employer may not intentionally discriminate against an applicant or employee. However, the law is not concerned with motive and the employer may still be found to have discriminated unlawfully even where he did not intend to do so. Dan may not intentionally discriminated Alison but just because of his lack of managerial skills she was discriminated. There are some important duties of employer when it comes to implied terms of a contract they are “to treat the employee with mutual trust and confidence and take reasonable care for the safety of the employee” clearly these two points were lacking in Alison's case. Dan didn't treated Alison with care and there was no mutual understanding and communication between them; which forced Alison to submit a two month doctor's sick note citing “stress”. Also employers owe a duty of care to their employees. Common law states that “if an employer knows that the incompetence of one employee is endangering another, then he must take reasonable precaution to prevent this. If necessary, the incompetence should be dismissed”. Being a manager it was Dan's responsibility that he should have sorted out the issue between Alison and Darren. Transferring Darren from her work place to another or if it was possible termination of her contract otherwise there is another option in Human Resource prospective. Darren case should be treated by following the ACAS (Advisory Conciliation Arbitration Service) which was published and practiced since 1977. Formal Action should be taken under disciplinary procedures. Formal Action is the 4th stage of disciplinary procedures which include Investigation, Letter, Meeting and Action Taken.which is explained in the appendix 4 of the report.
- Alison suffered an unfair dismissal because she has given potentially fair reason for going of sick but despite that fact the trustees have accordingly passed a resolution formally dismissing her. She can bring this whole issue into Employment Tribunal and can easily claim damages for being discriminated on the ground of Sex, Racial, and Equal opportunity and for unfair dismissal.
Availability Of Advice And Support For Employees And Employers – Where To Be Found?
The following statues can be found helpful for employees and employers;
- The Sex Discrimination Act 1975
- The Race Relations Act 1976
- The Employment Equality (Religion or Belief) Regulation 2003
- The Disability Discrimination Act 1995
- The Equal Treatment Amending Directive No( EC 2002/73)
- The Employment Equality (Sex Discrimination) Regulation 2005
These can be found on the following websites which are always up- to -date;
And also for Advisory Conciliation Arbitration Service the following website is helpful www.acas.org.uk. The reason why I have suggested these website because if you are employee or an employer both will find the best and updated statutes, statuary instrument and EU directive on these above mentioned websites.
Grievance And Disciplinary Procedures And Their Importance.
The Shorter Oxford English Dictionary defines grievance as: ‘The infliction of wrong or hardship on a person; injury, oppression; a cause or source of injury'. ACAS (2003) define grievance as concerns, problem or complaints that employee raise with their line managers. My Advice will be to Dan use statutory grievance procedure under the Employment Act 2002, which contain three steps and they are the followings;
Step 1: Written Statement Of Grievance
An employee could have a grievance if the employer either takes, or propose to take some action, and the employee thinks that the reason for this action is not the way in which the employee is doing his job. The employee must set out the grievance in writing and send the statement, or a copy of it, to the employer. The employer should try to sort the matter out informally, but if this is not possible the matter goes to step 2.
Step 2: Meeting
The employer must invite the employee to attend a meeting to discuss the grievance. The employee can be accompanied by a trade union official or a workmate if he wishes. The meeting must not take place unless: (a) the employee has informed the employer what the basis for the grievance was; and (b) the employer has had a reasonable opportunity to consider his response to that information. The employee must take all reasonable steps to attend the meeting. After the meeting the employer must inform the employee of his decision as to his response to the grievance and notify the employee of the right to appeal against the decision if he is not satisfied with it.
Step 3: Appeal
If the employee does wish to appeal, he must inform the employer, who must then invite the employee to attend a further meeting. The employee must take all reasonable steps to attend the meeting. After the meeting, the employer must inform the employee of his final decision.
In almost every organisation it is regarded a good employment exercises for employers. Government has also introduced statutory grievance procedure for all workers not just employees. Grievance is most often come in play when there is a breakdown in between working colleagues or sometime between employees and their managers if there is no such practice as grievance in an organisation most likely there will be continuous conflict between colleagues which will not only have an effect on the performance of employee but also the organisation will suffer as well. A grievance procedure is like a safety wall around employees which keep them safe in an organisation. Also line manager have a sort of communication channel in between them and employees to hear about issues that may be worrying their staff.
Some part of the disciplinary procedure has been explained in the above headings and appendix 4 but it is will be explained in more detail in Assessment 3.
Summary Of Recommendations
In this draft report I have provided recommendation to Dan over various issues which he has faced during his recruitment exercise, Human resource management, the employment relationship, equality and diversity, performance management and discipline and grievance.
Dan needs future Development and implementation of the correct policies and procedures recruitment process. Correct job analysis is very important for Applicants. Job description is important element in term of recruitment process it explains the true nature of the job. In order to recruit the best suitable person for the job the description and advertisement should be clear.
The second thing Dan needs to do is avoid Discrimination in the workplace because his current practice is discriminatory. He needs to follow anti-discrimination law such as Sex Discrimination Act 1975, Sex Discrimination Act 1986, Race Relation Act 1976, Disability Discrimination Act 1995, Disability Discrimination Act 2005 and Equality Act 2006 to avoid discrimination in the future. He also needs to come up with new structure of interview which goes with these above legislation. But Dan needs to avoid any offensive environment which can easily affect person's dignity.
Dan clearly lacked managerial skills when it comes to employee involvement because employee involvement is widely used to achieve employee commitment and engagement, leading to the high performance workplace which is necessary to maintain and improve levels of productivity. Dan was also not fulfilling the role of line manager because he was not aware of Darren's unfair behaviour towards Alison. By being a Line manager of the organisation it is Dan's job to developed a process management plan to improve organisation, team and individual performance and also grievance and disciplinary procedure needs to be follow in order to prevent the same mistake in the future.
Reference Section / Bibliography
- Foot, Margaret. And Hook, Caroline. Introduction to Human Resource Management 5rd edition, (Pearson education limited (UK), 2008)
- Keenan, Denis, English Law Text and case 15th edition (Pearson education limited (UK,) 2007)
- Macintyre, Ewan. Essentials of Business Law , (Pearson education limited (UK), 2007)
- Nairns, Janice, Employment Law for Business Students 3rd edition (Pearson education limited (UK), 2008)
Acts & E- source
- ACAS (http://www.acas.org.uk/index.aspx?articleid=1461)
- Ahsan v Watt (formerly Carter) (sued on behalf of the Labour Party) – (2008) 1 All ER 869 (http://www.lexisnexis.com/uk)
- Koppi v Austria (App. No. 33001/03) -  ECHR 33001/03 (http://www.lexisnexis.com/uk)
- LONDON BOROUGH OF LAMBETH (appellants) v COMMISSION FOR RACIAL EQUALITY (respondents) -  IRLR 231 (http://www.lexisnexis.com/uk)
- The Sex Discrimination Act 1975 (http://www.statutelaw.gov.uk/)
- The Race Relations Act 1976 (http://www.statutelaw.gov.uk/)
- The Employment Equality (Religion or Belief) Regulation 2003 (http://www.statutelaw.gov.uk/)
- The Disability Discrimination Act 1995 (http://www.statutelaw.gov.uk/)
- The Equal Treatment Amending Directive No ( EC 2002/73) (http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:269:0015:0020:EN:PDF)
- The Employment Equality (Sex Discrimination) Regulation 2005 (http://www.statutelaw.gov.uk)
- West Law (http://www.westlaw.co.uk/)
London borough of Lambeth (appellants) v. Commission for Racial Equality (respondents) (1990)
The Council advertised two jobs within their housing benefits department, within the department. Over half of the tenants dealt with by the department are of Afro-Caribbean or Asian ethnic origin and the Council decided that the two new appointments should be confined to Afro-Caribbean or Asian applicants. Accordingly, the advertisement stipulated: 'In view of the personal services the post holder will provide the members of the black community. The CRE brought proceedings under s.29 of the Race Relations Act in respect of the discriminatory advertisement.
It Held that the post could not be categorised as providing as "personal service" to any member of a racial group. The Tribunal took the view that an advertisement which purported to designate persons from at least two racial groups was not consistent with the language of s.5(2)(d) which refers to providing services to a person of "that" (i.e. a particular) "racial group" which is a form of direct discrimination.
Koppi v Austria (App. No. 33001/03) (2009)
Applicant is a member of religious community not being exempt from military service on grounds of religion. The Ministry dismissed his request on the ground that, under s 13a of the Civilian Service Act, exemption only applied to members of recognised religious societies and not registered religious communities. He claimed the state had violated arts 9 and 14 of the European Convention on Human Rights.
Held – that there had been no indication that the applicant's religious community had applied for recognition as a religious society within the meaning of The 1988 Religious Communities Act or that such a request had been refused, let alone refused on grounds incompatible with the requirements of art 9 of the Convention. Therefore the applicant, having been a member of a registered religious community when applying for exemption from civilian service under s 13a (1) of the Civilian Service Act had not been in a relevantly similar or analogous situation as a member of a recognised religious society. There had therefore been no violation of art 14 taken in conjunction with art 9 of the Convention.
Ahsan v Watt (formerly Carter) (sued on behalf of the Labour Party) (2007)
Applicant was discriminated on racial grounds by qualifying bodies. Labour party not selecting A as electoral candidate. The Labour Party was estopped from challenging the ruling that it was a qualifying body and was not entitled to discriminate on racial grounds in its choice of candidates for the council election. In the instant case the tribunal had regarded the selection of white man as evidence that a person whose circumstances were the same as those of A, but who was not Pakistani, would not have been rejected. That was discrimination on racial grounds and in the end the appeal was allowed.
Formal Action 4th Stage of Disciplinary Procedures
Formal Action is the 4th stage of disciplinary procedures which include Investigation, Letter, Meeting and Action Taken. Dan's first job is to investigate the whole problem that what Darren has done wrong and what was her action against Alison, even the Employment Appeal Tribunal has given guidance that indicates that employee should carry out an investigation. After that Dan should informed Darren through a written latter that what alleged misconduct has happen. After that a meeting should be arranged in which Dan should explain the complaint and go though evidence and Darren should go through her case and answer any allegations that have been made against her. After the meeting Dan should made his decision there are two possibilities in Darren's case either a issue her a final written warning stating that what change required in her behaviour or she can be demoted to another job , loss of seniority or pay or a possible disciplinary transfer.
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