Advising Management on Legal Issues (Essay Sample)

Question 1
The people hired will be workers not employees and the appropriate contract would be fixed-term contract. As per the 1996 Employment Rights Act, a term contract that is fixed specifies the length of the contract or provides a termination date. In this case the employer requires the additional drivers to work for two months. Hence, a fixed term contract is appropriate. According to section 230(3) ERA, an employee is an individual who enters into or works under “A contract of employment; or Any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contact that of a client or customer of any profession or business undertaking carried on by the individual”. To help assess whether someone is a worker, the UK courts have developed a several element test. The elements include contract, personal service and business undertaking exception. There must be a written or verbal agreement, either explicitly stated or implied, between the specific worker and the employer. In contrast to employee status, no proof of a responsibility on the part of the employer to issue work and the worker to act upon it (mutuality of obligation). It is also crucial that the person being hired to do the work decides to do it themselves rather than hiring someone else. In this case, the company requires the additional individuals to be hired to do the work personally. When it comes to professional or business undertakings, there is no universal test but the integration test is frequently employed in most cases. It involves asking; Does the person advertise their services to the world at large as an independent person? This would suggest that they are not a worker or Was the person hired by the employer to operate as a crucial component of the operations of the firm? This is an indicator that he or she is a worker.
The factors highlighted in this case indicate that the company will have a level of control over these drivers. They will be required to work for at least 10 hours a week and also ensure they personally undertake the work. Therefore, the drivers will not act totally independent and this indicates that they will be workers. The court further determined that while the idea of subordination may be useful in identifying self-employed contractor, an employee, worker, each case needs to be evaluated on its facts. The relationship between a worker and their employer does not always have to involve an element of subordination.
Question 2
The sales manager can refuse Mari’s request on the grounds that the work will not be done effectively if she works from home for three days in a week instead of five days in the office. The manager is also entitled to enquire about Mari’s childcare plans. According to The Flexible Working Regulations 2014, Any worker who meets the minimum service eligibility requirements may ask for flexible working conditions to enhance their work-life balance. This includes working from home, part-time work, job sharing, staggered hours. An employee has to have worked for their employer for at least 26 weeks including the maternity leave before requesting flexible working. A fit worker for flexible working has a year to submit a single request for flexible working; further requests are allowed if they are related to statutory rights, like the Equality Act 2010's right to request adjustments that are reasonable. The company should be dedicated to provide a variety of suitable working schedules. Management and employees, however, has to be realistic and acknowledge that not every flexible working choice will be suitable for every role.
When a flexible working arrangement is suggested, the organization has to consider several factors, including but not limited to: the cost of the proposed arrangement; the impact on other employees; the requirement for supervision; the department's current structure; the staff resources availability; the specifics of the activities involved in the role; the workload of the role; and health and safety concerns( Butler, 2016). Employees should remember that though they have the right to request flexible working hours, they do not automatically qualify for them. If the employer does not agree, they must explain their position in writing to the employee highlighting the business reasons for disagreeing. Employees are allowed to present their complaints to an employment tribunal. In this case, if the sales manager decides to decline Mari’s request to work from home for three days in a week, he will write to her explaining that he cannot approve the request because the arrangement will result to a significant loss in efficiency. However, as requirement for flexible working policy, the manager will be required to schedule a meeting with Mari to discuss the request, learn more about the suggested work arrangements and how they might benefit or adversely affect the employer and the organization. During this meeting, the manager can enquire more about Mari’s plan for childcare. The employee is welcome to bring a coworker or a union representative to the meeting if they so choose. The employee's application will be assumed to have been withdrawn if they miss a meeting and then a rescheduled meeting without a valid excuse. In case the request can be granted as dictated in the worker’s written application without further discussion, a meeting that discusses the request might not be required. A confirmation letter will be dispatched to the worker within twenty-eight days to inform them of the organization's acceptance of their request. The request could either be approved fully, partially, or rejected. The company may suggest a modified request, the request may be temporarily granted, or the worker may be invited to test out the flexible working arrangement for a while. Within 14 days of learning the outcome of their application, the employee has the right to file an appeal clearly stating the basis for the appeal and it should be done in writing. It will take 14 days to hear the appeal and after the appeal meeting, the employee will receive notification of the decision within 14 days. A revision to the employee's employment contract will be necessary where flexible working arrangements are accepted as a constant change. Over twenty-eight days of the worker’s new working schedule, a new contract of employment will be provided to them. If a worker believes they have received unfair treatment or is unhappy with any aspect of the flexible process, they should discuss their issues informally with human resource department. If informal discussions do not satisfactorily resolve the issue, employees should file a grievance in accordance with the organization's grievance procedure.
Question 3
The management can start the process of dismissing Emile if he has a persistent or long-term illness that makes it impossible for him to do the job. This can be termed as capability dismissal due to illness. On rare occasions, an employee may be made to abandon their job due to severe sickness. Sometimes the employee will simply decide to leave. One might eventually have to think about dismissing them. In order for one’s dismissal to be fair, they have to ensure that they constantly consult and communicate with the worker, obtain the necessary medical advice, taking into account how the employee’s absence will impact the company, consider other options besides dismissal, and, if appropriate, make any logical adjustments as necessary according to the disability discrimination legislation. Prior to dismissal, make sure you follow the statutory dismissal processes provided in Employment Rights Act 1996 . You should consider all of your options before dismissing an employee because dismissal is a last resort and can be unfair if done improperly. Instead, try to help the individual get back to work. Consider whether it is the job that is making him unwell and has to be changed, or search for other ways to support him. For instance, consider giving him enough time to recuperate from his illness. With their written consent, you may consider requesting an occupational health evaluation or a medical report from their primary care physician. Always recall to seek answers for questions that are pertinent to the job because doing so will help you to get the information one requires to make an excellent decision. The worker has the right to receive the GP report before you and may decide not to share certain details. It might be fair for you to dismiss the employee if you can no longer sustain their job since no reasonable adjustments can be made. All employees should be treated sensitively during any dismissal process. You should also conduct yourself honorably and sensibly. The statutory requirements for dismissal must be followed during the termination process. Any compensation granted by the tribunal or arbitrator may be raised by between 10% and 50% if you unjustly violated the employee's rights by failing to follow the statutory dismissal procedures and the employee prevails in the unfair dismissal case. You must also carefully consider whether they are disabled under the 1995 Disability Discrimination Act. If the employee being subjected to the procedure has a disability, you will also need to take disability discrimination legislation into account and make any necessary reasonable adjustments to accommodate their needs. To prevent the employee from being at a disadvantage in the job compared to those without disabilities, an employer must make reasonable changes. For instance, modifying his work schedule or giving him specialized tools to facilitate his work (Barnes,2013). Employers are not p...