INTRODUCTIONIn this case between Tara Quinn and her employer Park publications Ltd, Tara is considering resigning and claiming constructive dismissal on the grounds that she believes she is being unfairly treated because she refuses to make changes to her employment contract after they took over the company twelve months before. She recently received a final written warning after missing a deadline and believes the company is trying to work her out of the business unless she concedes It is my plan to examine the employment law relevant to this case such as The Unfair Dismissals Act, to determine if Tara were to take a constructive dismissal case would it be successful. To look at various different aspects of the law such as Transfer of Undertakings Protection of Employment to advise Tara to her rights as an employee after the company changed hands. The Code of Practice on Grievance and Disciplinary procedure 2000, to look at the approach taken by her employer when issuing the written warning. Based on the facts of the law I will then offer Tara advice or remedies to her current employment situation.
The Unfair Dismissal Act 1977Constructive Dismissal arises where an employee terminates their contract of employment with or without prior notice due to the conduct of the employer. The employee’s resignation is classified as involuntary as a consequence of breach of contract by the employer, and were the actions of the employer were so unreasonable that the employee was left with no option but to resign. (1)
The employee is entitled to regard their contract as terminated if:
- The employers conduct amounts to an actual breach of the contract of employment.
- The employers conduct shows that they no longer intend to be bound by one or more of the essential terms of the contract.
- The employer has acted unreasonably.
- Conduct by fellow employees that go unchecked by the employer may also be taken into account. (2)
Points to note in regard to constructive dismissal
- The burden of proof lies solely with the employee.
- The complaints or grievance procedure should be utilized before resigning.
- Any outside industrial relations procedures should be used before resigning.
- Resigning should be the last resort after having used all available means of resolving the problem. (3)
Transfer of Undertaking Protection of Employment Regulations (TUPE)The Transfer of Undertaking Protection of Employment Regulations apply where a transfer of business from one employer to another as a result of a legal transfer. As stated in the Irish Statute Book, following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiring of the collective agreement or the entry into force or application of another collective agreement. (5) In other words when a transfer has taken place the new employer is obliged to abide by the existing employment contracts for employees, unless a mutual agreement can be made between the new employer and the existing employees. When applying this law to Tara’s case she is perfectly within her rights to continue to work under the terms of her own contract and has the right to refuse any changes.
The Code of Practice on Grievance and Disciplinary Procedures 2000.The main purpose of the code is to provide guidance to employers on the general principles, which apply in grievance and discipline procedures. To apply disciplinary measures in a fair and consistent manner. For management to maintain a satisfactory standards. For employees to have access to procedures where alleged failures to comply with these standards may be fairly addressed. (6) All disciplinary matters should be conducted with due regard to natural justice and fairness. Natural justice includes:
- The right to know the nature of the allegations made against you
- The right to a fair and impartial hearing
- The right to representation
- The right to state your case
- The right to appeal
Disciplinary steps may include:
- Verbal warning
- Written warning
- Final written warning
- Suspension or dismissal
ConclusionIn my opinion, I feel, at this time, if Tara were to take a case of constructive dismissal, it would fail as she has not exhausted all avenues on an internal basis first and a tribunal would find her resignation unreasonable. Outside of this Tara is still left in a difficult situation. I feel her manager’s approach with the written warning was incorrect and Tara did not receive Natural Justice and fair treatment. She wasn’t offered the right to representation, there was no investigatory meeting and she wasn’t offered any representation. It would be my advise to Tara to appeal the written warning to her managers superior and request a right to state her case. During an appeal meeting Tara could bring along her own representative and raise the issues she is having with her manager in relation to changing aspects of her contract. At this time she may discuss and negotiate new terms and conditions or stick with her original contract. After the appeal meeting Tara’s employer may decide to proceed with the written warning depending on how serious they feel her offense was. If after all of Tara’s concerns have been documented and the problems persist between herself and her manager she may then consider going on to a constructive dismissal case.
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Employment law deals with the rules and regulations and legal rights of and restrictions for the employees working in a specific organization. These are set by the country and state governments and may also be called labor laws. The core purpose of this law is to monitor the regulations and rules implied in an organization to ensure healthy employee relationships and smooth functioning. The other sources than government such as custom and collective bargaining are also involved in managing employment law. There are basically two divisions of the employment law, one is collective employment law and the other is individual employment law. Individual law as the name suggests deals with single employee at work and his rights whereas collective law is meant for worker unions and labor organizations and their rights.
Collective bargaining is one of the oldest ways of managing relationship between the workers and employer. It was practiced and supported strongly by the Britain government in 1950’s. The state government itself was very concerned in establishing healthy employee relationships and looked for ways to promote it. Back then Britain was most prominent country involved in employee benefits and collective bargaining. Collective bargaining is a simple to understand concept. It is a process through which the employer and trade union come on consent at certain terms and conditions for working. This helps both the owner and the workers to secure their interests and leads to a win-win situation for both parties. This process renders an agreement which is signed by both ends and they mutually agree to work on certain conditions. However the collective bargaining did not include any laws or rules for paid leaves. The annual paid leaves which are a common term now were not introduced back then and the employee unions had to come up with different ideas to get them approved and legal.
Employment laws have evolved over a period of time. The Britain was an industrial welfare state which later changed into a competition state. This transformation pushed many changes in the government policies and agendas to ensure smooth running of the country. Labor laws were revised several times since their early implementation. As the competition increases globally the country every country makes amendment in the policies and monitors the state actors that play major role in shaping the country’s economy and lead the country for further development and economic growth. Labor laws are considered one of those agendas that directly affect the economy.
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