Legal issues
1.What is constructive dismissal (elements, conditions etc.)?
2.Employer’s responsibilities under the ACAS Code of Practice;
3.Employees’ rights;
4.Circumstance which breaches the Equality Act 2010;紫草油的正确做法
5.Remedies for a constructive unfair dismissal.
Legal rules
1.Constructive dismissal refers to a dismissal propod by the employee due to that the employer riously or fundamentally breached the contract of employment, although the employer does not want to dismiss the employee.
2.Failure to provide a suitable working environment or to protect workers by the employer is deemed as fundamental breach of the employment contract and forms a ground for constructive unfair dismissal1;
3.Only where the employer has fundamentally breached the employment contract can the employee bring a claim2;
4.An employee has a right to make a claim against a constructive unfair dismissal even he has not been dismisd yet;
5.Among the three ways: compensation, re-engagement or reinstatement, an employee who claim against a dismissal is upheld will be awarded the most appropriate remedy by the employment tribunal depends on the circumstances. Application and Conclusion
1.Advi Ms. Indiscreet
There are various kinds of endings for an employment contract. No remedy is available where both parties consult each other and agree to terminate the employment contract. But termination of the employment contract through dismissing, such as wrongful dismissal, unfair dismissal or constructive dismissal, may give ri to remedies to the dismisd employee.
Constructive dismissal refers to a dismissal propod by the employee due to that the employer riously or fundamentally breached the contract of employment, although the employer does not wa
nt to dismiss the employee. In the situation of constructive dismissal, both parties to the employment contract do not intend to terminate the employment contract, but the employer substantially alters, or fundamental breaches the terms or conditions of the employment contract, the employee has to resign from the employment. For example, reduction of pay, inappropriate penalty or fail to provide a safe or suitable working environment by the employer may result in a 1Bracebridge Engineering Ltd. v Darby (1989).
朱家角镇2Western Excavating v Sharp (1978).
constructive dismissal.
In the captioned ca, Ms. Chatterbox spread the news about the pregnancy of Ms.Indiscreet among colleges, which made Ms.Indiscreet quiet uncomfortable when working in the firm. She then asked to transfer her to the other branch but was refud without any reasons by the head of the firm. Since the firm fails to provide a suitable working environment for Ms.Indiscreet she may choo to resign from the firm and claim a constructive dismissal.
The Head of the Firm and its Human Resources Department had not undertaken a cour of conduct to justify the constructive dismissal. Firstly, the firm did not take any steps to stop the spread
of rumors among its staff, which made Ms. Indiscreet quite uncomfortable. When Ms.Indiscreet told her pregnancy to the Head of Dillydale Accountants LLP, the Head of the firm also informed Ms. Chatterbox, the Head of the Human Resources Department, the news and requested Ms. Chatterbox to keep cret. However Ms. Chatterbox immediately disclod the cret, which gave bad influences and impacts on Ms. Indiscreet. But no steps were taken by the firm. Secondly, the firm fails to provide a suitable work environment for Ms. Indiscreet. When Ms. Indiscreet felt uncomfortable to work in the firm, she requested to be transferred to other branch of the firm but the request was rejected and to the contrary she was required to return to work. The spread of rumors and the requirement of return to work jointly lead to an unsuitable working environment for Ms. Indiscreet. Thirdly, besides for the requirement of return to work, the head of the firm even threaten to cea to pay Ms. Indiscreet. Ms. Indiscreet had to write a letter to resign the job. (1) The firm had committed a fundamental breach of the employment contract (fail to provide suitable working environment); (2) Ms. Indiscreet had to resign the job due to the breach; (3) Ms. Indiscreet did not waive the breach and affirmed the contract. Even Ms. Indiscreet had not been dismisd she may make claim against the firm for the constructive unfair dismissal.
2.Advi the Head of the firm
ACAS Code of Practice is a guidance issued by Acas for resolving problems raid out from work under the statutory law3. ACAS Code of Practice has t out procedures to resolve problems ro from work. Failure of complying with the Code of Practice results in no liability of a person to proceedings. However the Code will be referred by employment tribunals when handling labour cas; unreasonably failure to comply with the Code may lead to employment tribunals to make an adjustment of up to 25 percent to the made awards in relevant cas. The make the ACAS Code of Practice enforceable as a law.
The Code of Practice defines “Grievances”as concerns, problems or complaints raid by employees with employers. The Code of Practice impos a t of responsibilities and makes veral requirements on the employer when dealing with the grievances of employees. The general responsibilities of employer dealing with disciplinary or grievances issues are specified in the Code of Practice as follows. (1) 3Section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992.
Grievances cas should be handled fairly and transparently; (2) Employers should deal with the issues promptly; (3) Employers should act consistently; (4) carry out any necessary investigations to establish the facts of the ca; (5) inform the employees the basis of the problem, allow them to repr春节手抄报内容
ent their opinions towards the issues; (6) allow employees prent at relevant meetings; (7) allow employees to appeal against decisions of dismissal made by the employer4. Besides, there is a special part in the Code of Practice for resolving employees’ grievances. The part “grievances” provides special procedures that employers and employees shall follow. A meeting is required to deal with grievances: employers are required to hold a formal meeting as soon as possible after employees rai a grievance; employees and employers should attend the meeting; employees have a right to have a companion accompanied; a companion may be the colleague, reprentative from a trade union or an trade union employed official; the Code of Practice meanwhile specifies veral conditions and restriction on companion who accompany with the employees; employees should be given opportunities to explain their grievance and their suggested resolution; investigation should be conducted sufficiently to establish the fact. If a resolution is decided, the decision should be rviced to the employee, the employer should inform the employee what action the employer will take and notify that the employee is entitled to appeal against the decision if they are not satisfied with the resolution. Such appeal should be heard impartially without any unreasonable delay, time and place of hearing should in advance notify the employee. If the employee does not think that his grievance is resolved through the decision and action by the employer, the employee may further take a grievance. Disciplinary process should be suspended if the employee rais a grievance; if th
e grievance raid by the employee is in connection with the disciplinary process the two may be dealt with concurrently5.
Especially in the captioned ca, immediately after Ms. Indiscreet raid a grievance against Ms. Chatterbox to the Head of Dillydale Accountants, the head should hold a meeting to resolve the grievance; Ms. Indiscreet should be allowed to prent at the meeting, explain her grievance and propo her opinion towards her grievance; the decision on the grievance should be communicated to Ms. Indiscreet after it is made; inform Ms. Indiscreet what actions the firm will take to deal with her grievance; inform Ms. Indiscreet the right to appeal against the decision; if Ms. Indiscreet rais a grievance in the disciplinary process, the grievance should be dealt with firstly.
The conduct of the firm did not obrve the ASAC Code of Practice, which may lead to an adjustment to the award of up to 25 percent by the employment tribunal. In order to avoid the penalty the firm may execute the procedure t out in the Code of Practice and deal with Ms. Indiscreet’s grievance fairly.
3.Explanation of employee’s rights
简爱结局Employee has various rights in accordance with statutory laws. Employee has a right not to be discri
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minated due to his characteristics protected by law, such as 4Acas, 2009, “Code of Practice 1”, p. 3-4.
5Acas, 2009, “Code of Practice 1”, p. 9-10.
discrimination bad on someone’s race, x, gender, xual orientation, religion, belief, disability or other characteristic is strictly prohibited by law6. Harassment on a employee is also prohibited by the Equality Act 20107. Age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, x and xual orientation are expressly listed characteristics under the protection of law8.
3.1Right not to be discriminated
The employee has a statutory right not to be discriminated, directly or indirectly due to characteristics he has, such as age, gender, pregnancy, x, xual orientation, disability, marriage and civil partnership, race, religion or belief, and so on. The employee shall not be discriminated in any forms for any protected characteristics he has.
3.2Right to avoid harassment
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The employee has a right to avoid harassment from an unwanted conduct, which may damage his dignity, private life or has an effect of forming an uncomfortable environment for the employee. Victimization is also a prohibited conduct specified in ction 27 of the Equality Act 20109.
3.3Right to claim against dismissal
The employee has a right to make claim against dismissal by the employer. The employer may dismiss an employer for various reasons or by various ways. In ca the dismissal constitutes an unfair dismissal, wrongful dismissal or a constructive dismissal (include constructive unfair dismissal), the employee may claim damages against the dismissal by three ways: reinstatement, re-engagement or compensation.
3.4Rights in dealing with the employee’s grievances
The ACAS Code of Practice has specified various rights of the employee when the dealing with grievances raid by employees. The employee has a right to require to hold a meeting to resolve his grievance; the employee is entitled to prent at the meeting companied with veral companions; at the meeting he has a right of giving explanation to his grievance, states opinion towards the grievance; the decision should be communicated to the employee, allow the employee t
o appeal against the decision; if the decision does not satisfy the employee, he may make further grievance.世界领土排名
4.Whether the actions and omissions by Dilydale Accountants LLP breached the Equality Act 2010.
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The actions and omissions by Dilydale Accountants LLP had breached the Equality Act 2010. Discrimination is specified as a prohibited conduct in Chapter 2 “prohibited conduct” of Part 2 “Equality: key concepts”, including direct discrimination, indirect discrimination and discriminate an employee against a characteristic protected by the Equality Act 2010. Section 18 of the Equality Act 2010 has specified pregnancy and maternity discrimination in work cas, in accordance with the provision, Ms. 6Chapter 1 “Protected Characteristics” of Part 2, the Equality Act 2010.
7Section 26, the Equality Act 2010.
8S.4, the Equality Act 2010.
9S.27, the Equality Act 2010.
Indiscreet’s colleagues discriminated against her for her pregnancy becau they treat her less favorably for her pregnancy (Ms. Chatterbox spread rumors about who made Ms. Indiscreet pregnan
t); Section 18 of the Equality Act 2010 has specified that harassment refers to an unwanted conduct which is in connection with a protected characteristic and aims at or has effect of violating other’s dignity or creating an degrading, humiliating or offensive environment for the person; an unwanted conduct of xual nature and the conduct has above mentioned purpo or effect; an unwanted conduct of a xual nature or in connection with gender reassignment or x, the conduct has above mentioned purpo or effect and is treated less favorably. In accordance with the provisions regarding harassment, Ms. Indiscreet was harasd by Ms. Chatterbox and other colleagues since the discussion of who made Ms. Indiscreet pregnant in an unwanted conduct and the conduct related to relevant protected characteristics (x, pregnancy) has the effect of violating Ms. Indiscreet’s dignity and creating a degrading, humiliating or offensive environment for Ms Indiscreet. At last, the firm did not follow the procedure t out in the Acas Code of Practice when receiving Ms. Indiscreet’s grievance but refu to accept Ms Indiscreet’s opinion of resolution for the grievance and threatened her if she did not return to work, the firm would cea to pay her, which forced Ms. Indiscreet to resign her job. It had constituted a constructive unfair dismissal for Ms. Indiscreet.
5.Remedies for the constructive unfair dismissal
There are mainly three ways of remedies for an unfair dismissal in accordance with common law10.
Employment Tribunals will award the most appropriate remedy to the successful claimant according to the special circumstance. The three ways of remedies are: reinstatement, re-engagement and compensation. Reinstatement and re-engagement are two remedies that are not usually awarded (they are awarded less than 2 percent in the whole claims). Reinstatement and re-engagement will not be ud if the employee involved in the dismissal is at fault as to the dismissal. As stated in the captioned ca, Ms.Indiscreet was in a relationship with anaccountant at the practice (Mr.Fussy) and, at the time of the firm’s Christmas party, was pregnant by him; meanwhile at the party she and Mr. Strong were en flirtatiously kissing and sharing a hotel room for the night. What she did may easily cau unnecessary suspect and guess. She was at fault as to the spread of rumors. Therefore the remedies of Reinstatement and re-engagement will not be award to Ms. Indiscreet for the constructive unfair dismissal. Besides, the remedy of reinstatement is against the intention of Ms. Indiscreet (she wanted to be transferred to the suitable position in other branch, not reinstate her position in the Barnsley branch); the remedy of re-engagement is also meaningless for Ms. Indiscreet since both parties do not intent to terminate the employment contract (Ms. Indiscreet only wanted to change the branch she works for).
As to the remedy of compensation, it is the most appropriate remedy for Ms. Indiscreet. Two element
s may be contained in an award: a basic award and a 10S. 112, the Employment Relations Act 1996.
