The presented assignment is relating to the provisions regarding the unfair dismissal of the employees by the employer under the United Kingdom employment law. The drafted submission outlines the provisions of the Employment Rights Act 1996 and also several case laws decided by courts regarding the dismissal of the employees to be fair or unfair. The submission is drafted on the case of ABC Ltd which is being at a question regarding the decision it has taken for the redundancy of four of its senior employees as the company believes the employees are not coming up to the mark in their existing performance and are focussed only towards the new office at Midlands which has not yet opened. The four employees have been Lydia Skinner, Sarah Briggs Bob Myers and Dan Mayo.
Case 1: Lydia Skinners
As per the facts, it has been provided that Lydia Skinners are the creative director and the company has justified the redundancy of her stating that she has not fulfilled her current duties properly and has completely diverted the employees and their functions towards the opening of the Midlands office. As a result, the company has lost two of its big clients and these clients have terminated their contracts with ABC Ltd. Further, the company has also given the reason that she has kept the employees uninformed regarding the advantages and disadvantages of opening the Midlands office. The criteria used by the company for her redundancy has been stated by the company to be absence, performance, warnings relating to disciplinary and also flexibility in attitude and also the term of her service.
Moreover, the company has also stated that her score is poor as compared to the other employees who have attended foreign meetings and sessions which she could not do as she has a young five-year-old son. On examining the facts and circumstances of the case of Lydia Skinner, it has been observed that the provision under Section 94 of the Employment Rights Act 1996 is worth noticing which provides as a right of the employees not to be unfairly dismissed. The provision states as follows:
"An employee has a right not be unfairly dismissed from his service by his employer."
But apart from the above provision, there are certain exceptions where the employer can make redundancy of any employee. The subsequent part shall provide for the description of the provisions and circumstances under which a fair redundancy can be made.
According to the provision provided under Section 95 of the Employment Rights Act 1996, it has been stated that an employer can make redundancy of the employee if the contract under which the employee was hired has been terminated. Further, a valid redundancy can also be made if the contract under which the employee has been hired has not been renewed and it is for a limited period that has expired. And lastly, an employer can make a fair redundancy if there is anything done by the employee in his conduct repugnant to the provision of the employment contract.
Apart from the above two provisions, the Employment Rights Act 1996 also provides for the criteria to judge the fairness of the redundancy under Section 98 of the Act and provides that if the employer has given a reason for the redundancy of the employee which relates to the capability and qualification of the employee in performing his work or relates to the conduct of the employee, the redundancy shall be valid. Further discussion of the provision also states that the capability of the employee shall be assessed through his skills and physical and mental health quality. Moreover, it has also been provided under clause (4) of section 98 that the employer has to be reasonable in his decision of dismissing the employee even if the above criteria for redundancy has been fulfilled. The employment tribunal while holding the redundancy as valid constitute the case on merits and equity.
There has been the determination of stages while holding the redundancy to be fair for the employee and these stages have been categorised into three parts. At the first stage, the employer shall have the responsibility of proving the reason for redundancy. Justification of the above statement lies in the judgment given in the case of Adams v. Derby City Council  IRLR 163 where the court held that the employer shall have the entire responsibility of proving the reason for redundancy to be valid and reasonable. Moreover, the same has been held in the case of St Anne's Board Mill Co Ltd v. Brien  ICR 444 where the court stated that if a reasonable and honest employee would have decided dismissal in that circumstance, the dismissal shall be valid and it should be based on an honest and genuine reason. Further, examining the reasons for dismissal provided under the Employment Rights Act 1996, it has been observed that the employer can also make a dismissal if the employee lacks the capability. Reference of the case Abernethy v. Mott, Hay and Anderson  ICR 323 where it was held by the court that if an employer is underperforming or shows an attitude that is inflexible and unadaptable, the dismissal of such employee shall be valid.
On applying the above laws and provisions on the facts of the case, it can be stated that the redundancy of Lydia Skinners on the ground of inflexibility due to her young child is not a valid ground as she has been inflexible, not due to incapability of lack of skill but due to the taking care of her five-year-old son. Moreover, her length of service is also not a valid ground for her redundancy. Justification of this statement is under the provisions of Section 57A and Section 99 of the Act. The absence of service of the employee was due to her minor son and the Employment Rights Act 1996 provides for time off from work under Section 57A which states that the employee is entitled to take time off from work if the employee has to look after dependants. Section 99(1)(a) states that the dismissal of the employee shall be unfair if the employee is being absent from work for a time off under Section 57A. hence, the grounds for the dismissal of Lydia Skinners is unfair (Dismissing staff, 2021).
Case 2: Sarah Briggs
As per the facts, the second employee at risk of redundancy is Sarah Briggs who is the senior manager in the creative team. She believes she has been made redundant as she is on maternity leave and thus, she is unable to present her case when the key decisions in the company are taken. Though she is ready to serve reduced hours even during her maternity leave, the company has dismissed her suggestion of working reduced hours.
In this case, the provisions of Section 99 shall be attracted where the redundancy and dismissal of the employee shall be unfair if she has been dismissed because of pregnancy or childbirth or maternity leave. Moreover, she has not been made a part of the entire process taking place in the company and thus, such non-communication of the decisions to her regarding her service is also unfair. Justification of the above statement lies in the provision of Section 47C which states that non-consultation with the employee regarding their service due to their pregnancy or childbirth or maternity leave shall be a detriment to their service. To deal with her during her maternity leave, the company should communicate every decision it is taking regarding her service and that she should be involved in every matter that is being discussed regarding her service through virtual modes (Unfair dismissal, 2021).
Further provisions that provide for the equal treatment of pregnant women and of the women on maternity leave in any organisation are Section 18 of the Equality Act 2010 which states that the employer shall be discriminating if he treats any woman on maternity leave unfavourably. Another legislation outlining equal treatment for the woman on maternity leave is Article 15 of the Equal Treatment Directive 2006 which states that any woman on maternity leave shall be entitled to her post after the completion of her leave on conditions and payment no less favourable to her. Moreover, as she is on maternity leave, she is entitled to a full leave and she shall not be required to work for a reduced hour during her leave. Hence, her dismissal on the above grounds is unfair.
Case 3: Bob Myers
In the case of Bob Myers, he has been at risk of redundancy due to his old age as he is 62 years. The company has decided redundancy for him as the company believes that he shall not be as energetic as other young employees and that he should be redundant due to his inefficiency. On examining the statute, Employment Rights Act 1996, it has been clear that any dismissal of the employee due to his age shall amount to unfair dismissal as age is not considered as a valid and reasonable cause to redundant an employee. Older employees are protected from age discrimination at the workplace and are also protected from unfair dismissal due to old age. Moreover, the employee must look that the redundancy policy is not directly or indirectly discriminate against the older workers.
Moreover, if Bob Myers is being at risk of redundancy the company shall take measures and provisions to offer him work as per his age as he is willing to work even after retirement. In case the company takes the decision of redundancy for Bob Myers, he shall be entitled to get statutory redundancy pay and the company shall be liable for such payment. Apart from the above provision, the Equality Act 2010 also protects old age employees from being discriminated against at the workplace. Section 5 of the said Act states that a person shall not be discriminated against at the workplace due to his age.
Case 4: Dan Mayo
In this case, the employee Dan Mayo has been absent from his work in several instances as he is dependent on insulins due to diabetes. As per the provided provisions it has been observed that the dismissal of the employee due to his illness shall be the last resort to be adopted by the employer. The employer is required to make arrangements for all the reasonable measures that could be taken for the employee to continue his work. Such measures shall include:
Getting medical reports with the permission of the employee
The employer shall arrange a medical assessment for the employee
The employer shall look at all possible aspects that the employee is not disabled and make all possible arrangements for him for the continuation of his work.
If all the possible measures do not work out, then only the employer shall be entitled to redundant the employee on grounds of illness. In this case, as per the circumstance, the company has no far taken any measure for the continuation of the employment of this employee and thus, the company is not entitled to make dismissal of the employee. The company ABC Ltd is required to make a necessary medical assessment of the employee before proceeding with the decision of redundancy for him. The company is also required to take all the necessary and reasonable steps to make him work even after he is absent from work due to illness.
Apart from the above provisions, the Equality Act 2010 protects the employees from type 1 diabetes where the employee shall not be discriminated against due to his illness and that the employer is required to take necessary measures for the employee, for example, giving them break to check their glucose level. Section 6 of the Equality Act 2010 protects employees from being discriminated against due to any disability. Thus, the company ABC Ltd is not entitled to redundant the employee Dan Mayo due to his physical health as Section 6 of the said Act covers disability which includes physical or mental impairment.
The claim of Lydia Skinner regarding equal pay for equal work
For the claim of equal pay for equal work by Lydia Skinner, the provisions of the Equality Act 2010 shall be applied where it has been provided that there shall be no discrimination on paying the employees if they are at the same post. the Act under the provision of Chapter 3 Section 64 to 71 states that there shall be equality among the employees of both the sex in terms of payment, the Act also states that the employees of both genders shall be paid equally if they are on the same post doing the same work, or they are doing the work of equivalent nature or they are doing the work of equivalent value. Hence, Lydia Skinners shall succeed in her claim for equal pay against the company ABC Ltd.
In such a case, it has been advised for the company that it reviews its payment scales for the employees on the same post and satisfy Lydia Skinners by giving her an increment in her payment. Moreover, the Equality also states that there shall be equality in payment of the workers of both the genders not merely in basic salary but all the other benefits that include the following:
Benefits relating to performance
Overtime payments and allowances
Hours of work
Benefits in kind
Hence, Lydia Skinner shall succeed in her claim for equal payment against the company ABC Ltd under this Act.
The claim of Pam Truman regarding maximum working hours and workload
As per the Working Hours Regulations, an employer cannot make an employee work for more than 48 hours a week. But in this case, though Pam Truman is not been made redundant due to other job losses, her workload has increased and she has been made to complete the tasks within a strict deadline. Hence, she has been subjected to unfair treatment as she has been overburdened with work.
As per the Working Hours Regulations, an employer can only make the employee work for a maximum of 48 hours a week unless the employee has chosen to opt from this provision. Hence, Pam Truman can make a claim against ABC Ltd for reducing her workload and make her work for 48 hours a week unless she opts out of this provision (Maximum weekly working hours, 2021).
This claim shall be a potential claim as this forms an important part of the employment law of the United Kingdom and the employers are required to make the employees work for such time as prescribed in the working time regulations. Thus, the company is being advised that it makes recruitment of the team members so that the workload of the team leader Pan Truman is reduced and work efficiency can be achieved.
The claim of Pam Truman regarding leave and joining of trade union
As per the facts, Pam Truman has other issues that relate to her cancellation of leave and her joining of a trade union. Discussing the first issue, it can be stated that as per the provision under Regulation 15 of the Working Time Regulations 1998, an employer is entitled to revoke and cancel the leave of the employee if there is an excess of work or a busy schedule. But the right of an employer under this regulation is not absolute and this right is subjected to a prior notice to be given to the employee along with a valid reason. For example, if an employer has taken four days to leave, the employer is required to give a four days' notice to the employee for the cancellation of leave. Hence, at this point, the employer is entitled to cancel the leave of Pam Truman as it has been done due to a busy schedule.
Discussing the joining of a trade union, it has been stated that an employee has an absolute right of joining or cancelling the membership of a trade union. An employer cannot offer benefits to employees to leave the trade union. Moreover, an employer is also not entitled to threaten the employee for unfair treatment due to his joining the trade union. Hence, Pam Truman is entitled to join the trade union (Joining a trade union, 2021).
The claim of Diane Golding regarding bonus scheme as a freelancer
Lastly, the claim of Diane Golding is regarding her entitlement to a bonus scheme as a freelancer. In this regard, it can be stated that for determining the status of the employees, the guidelines of Advisory, Conciliation and Arbitration Service (ACAS) regarding the status of the employee shall be taken into consideration. As per the guidelines, an employee is given work by the employer whether under a written or an oral contract and usually paid a regular amount as per the hours of work. Hence, on applying the above test on Diane Golding, she is entitled to a bonus scheme by the company ABC Ltd (Types of employment status, 2021).
As the company ABC Ltd has proceeded with the decision of redundancies, the following suggestions are being made for the company:
The company is required to address the issues of the employees before making the final judgment of redundancies.
For Lydia Skinner, the company shall be required to pay her equally as compared to other employees on the same post and give her the benefits under Employment Rights Act 1996 regarding her dependant son.
For Sarah Briggs, the company is required to communicate every single decision regarding her employment to her and also give her the benefit under maternity leave and not force her to work reduced hours.
In the case of Bob Myers, the company is required to give him alternative work as per his age.
And in the case of Dan Mayo, the company is required to conduct a medical assessment for him and consider his physical health before proceeding with redundancies.
Thus, the company is under an obligation to work according to the guidelines of the government organisations and also the statute Employment Rights Act 1996 and Equality Act 2010 and all other legislations.
Abernethy v. Mott, Hay and Anderson  ICR 323
Acas.org.uk. 2021. Types of employment status: Checking your employment rights - Acas. [online] Available at: <https://www.acas.org.uk/checking-your-employment-rights> [Accessed 25 September 2021].
Acas.org.uk. 2021. Unfair dismissal: Dismissals - Acas. [online] Available at: <https://www.acas.org.uk/dismissals/unfair-dismissal> [Accessed 25 September 2021].
Adams v. Derby City Council  IRLR 163
Employment Rights Act 1996
Equal Treatment Directive 2006
Equality Act 2010
GOV.UK. 2021. Dismissing staff. [online] Available at: <https://www.gov.uk/dismiss-staff/dismissals-due-to-illness> [Accessed 25 September 2021].
GOV.UK. 2021. Joining a trade union. [online] Available at: <https://www.gov.uk/join-trade-union/trade-union-membership-your-employment-rights> [Accessed 25 September 2021].
GOV.UK. 2021. Maximum weekly working hours. [online] Available at: <https://www.gov.uk/maximum-weekly-working-hours#:~:text=You%20can%27t%20work%20more,or%2040%20hours%20a%20week.> [Accessed 25 September 2021].
St Anne's Board Mill Co Ltd v. Brien  ICR 444
Working Time Regulations 1998