Legal Advice: Dealing With Theft And Pregnancy In The Workplace

Overview of the Scenario

The Equality Act 2010 was created in order to toughen, make simpler, in addition to harmonise the existing legislation. This act delivers the Britain the novel discrimination law in order to protect persons from biased conduct. It also endorses fair and more equivalent society. The main purpose of this act is to legally protect the workers from unfair treatment at the workplace in addition to the society in a wider sense. Previously there was anti-discrimination laws, but this has been replaced by this single act, which is easy to understand and it has also strengthened the protection in some cases.

Main body

Anti-Discrimination law

Workplace and societal discrimination is legally protected by the Equality Act 2010. Previously there were anti-discrimination laws. This single Act has made the law relaxed and also it increased the protection against discrimination in workplace (Advice, 2010)

Previously there were several acts covering the discrimination in workplace. For example: Sex Discrimination act 1975, Race Relations Act 1976, and Disability Discrimination Act 1995.

The provisions for the equality act are:

• There is a protection against direct and indirect discernment, nuisance and persecution in services and public functions, work, education, links and transport.
• It has changed the meaning of gender relocation, via removal of medical direction.
• Breastfeeding mothers are protected.
• Put on unvarying description of indirect discrimination to all protected features.
• Agreeing provisions letting intended optimistic action.

Work related provisions:

• Gender pay discrimination claims were allowed provided there is no actual comparator.
• Clause related to pay secrecy has been made unenforceable.
• Protection has been extended to religious conviction or trust, gestation and motherhood and gender relocation.
• This act introduced new controls for employment court of law to make sanctions which help the broader labor force.

Law governing trade unions and their activities and their relationships with employers

Trade union is a membership-based organization. This is regulated by the United Kingdom labour laws. Generally, workers are the members of the trade union. The Equality Act 2010 was created in order to toughen, make simpler, in addition to harmonise the existing legislation. This act delivers the Britain the novel discrimination law in order to protect persons from biased conduct

The main purpose of the trade union is to protect the interest of its members ta the workplace.

These unions are the independent one, they are not dependent on their employers. The relationships of the employers and trade union are close one.

There are common interests and objectives between trade unions and the employers and sometimes there can be a partnership agreement between them.

Trade unions generally negotiates in respect of pay and conditions with the employers. Work place related issues such as large-scale redundancy was also discussed by them. They also discuss members concerns with their employers.

When trade unions are recognised by the employers then the negotiations of members pay and conditions takes place.

On the other hand, the terms and conditions are also discussed on the recognition of trade union by the employers, and this is known as collective bargaining.

There are some responsibilities of the employer towards union representatives who are also the employees. Employer’s relationship with the members of the trade union members and their representatives can be improved by offering them the required help in their administrative duties. The relationship can also be maintained by providing trade union members time off work for trade unions duties, company facilities, and information and consultation.

Relevant Legislation and Case Law

Activities of the trade unions includes:

• Ballot voting on industrial action.
• Union election voting.
• For the discussion of urgent matters meetings are arranged.
• Attending the annual conference.

Law related to welfare of the employees and their relationships with their employers

Relations between workers, employers, and the trade unions are regulated by the United Kingdom labour laws. Employer must provide their employees safe system of work. There is Factories Act 1802 which requires employer to provide cleanliness, ventilation, etc. Health and Safety at work, etc. Act 1974 were enforced.

National minimum wage Act 1998 was also introduced in order to provide national minimum wage rate.

Facilities regarding time and child care are provided, and this is governed by the Working Time Regulations 1998. Which sets the limits on the working time, because law seeks to ensure both a balance between work and life.

The time off for the child care for newly born and adopted child should be provided. Male parents are not provided enough time off which also effect the gender equality.

Generally, welfare facilities are those facilities which provide well -being of the employee. This includes washing, toilets, rest and changing facilities. Employer must provide their employees safe system of work. There is Factories Act 1802 which requires employer to provide cleanliness, ventilation, etc. Health and Safety at work, etc. Act 1974 were enforced

There should be assurance regarding the facilities cleanliness, and good supply.

 The ground for the discrimination under Equity Act 2010.

The grounds for discrimination under the equity act 2010 are:

• Time of life
• Incapacity
• Gender relocation
• Marriage or civil partnership
• Gestation and motherhood
• Race
• Religious conviction or belief
• Gender
• Gender orientation.

Meaning of discrimination as well as its categories

Discrimination means the act of making a distinction between one thing and other. Based on some personal characteristics unequal and unfair treatment to the person is a discrimination. When the treatment given to the person is same as everybody else is getting but it has a different and worse effect on that person simply because who he is. This is called indirect discrimination.

The categories of the discrimination include the following:

• Direct discrimination
• Indirect discrimination
• Comparators in direct discrimination
• Pregnancy and maternity discrimination
• Gender reassignment
• Discrimination connected to disability.

If the person is unfairly treated by someone simply because of his identity is direct discrimination. Direct discrimination is against equity Act 2010. It is unlawful and court may take action against it.

When the treatment given to the person is same as everybody else is getting but it has a different and worse effect on that person simply because who he is. This is called indirect discrimination.

Rights of the employee in case of different situation:

Unfair dismissal

The dismissal of the employee will be biased if:

• The owner does not have good reason to dismiss the worker.
• Termination process as well disciplinary process of the company has not been followed by the employer properly.

Anti-Discrimination Law

 Circumstances which comes under unfair dismissal are:

• Wanting flexible working hours
• Joining trade union
• Application for maternity, paternity adoption leave.
• Forceful retirement
• Exposure of wrongdoing in the workplace.

Contractual employment rights:

There are some rights of the employee which are related to the terms and conditions mentioned in the employment contract of the employee other than those required by the law, these are known as contractual employment rights.

Right to join the trade union:

There is a law which gives an employee the right to join trade union wherever they work. This is applied irrespective of the fact that trade union is recognised or not. The law provides the protection from being deprived from becoming a trade union member. The law has also given the right not to join a trade union. Same guard is provided to them also.

Statutory sick pay

There should be minimum statutory payment of 92.05 pounds each week statutory sick pay. Employer will pay for this kind of leave till 28 weeks. To qualify for the statutory sick pay the worker has to be absent from work for at least 4 days regularly. Less than statutory amount cannot be paid (SWARB, 2013)

Family friendly rights:

There are number of fundamental family rights are available to the employees provided by the law. Which are as follows:

• Maternity leave
• Paternity leave
• Adoption leave

Since, 5^th April 2015 shared paternal leave is available. Parental is a kind of  leave that is not paid and that can be occupied till the child is of 18 years.

From the date 30^th June 2015, right to appeal supple working hours is available and extended to employees with 26-week qualifying service.

Women are eligible to take 52 weeks statutory maternity leave.

As per the discussion above we can now focus on the issue and can conclude which rights are relevant for the employee in the given situation.

In the given situation Adam has no proof of her to be guilty of theft of the money. And as jane is pregnant taking maternity leave is her statutory right and the employer cannot dismiss her on that ground. There should be proper notice regarding her dismissal with proper reason and ground.

The rights that can be exercised by the Jane if she is dismissed are unfair dismissal rights and family friendly rights.

The risks of unfair dismissal are high here if Adam dismissed Jane, because there is no valid proof regarding theft of the money. And Jane can take legal against it. First Adam should have the valid proof against her then the dismissal will be valid irrespective of the rights available to Jane.

Work Related Provisions

With reference to the above situation the grounds for terminating the employee relations are:

• Conduct/misconduct- The outcome of the gross misconduct is found guilty is dismissal short of notice, otherwise in case of minor issues warning should be given. Here gross misconduct includes, theft, or discriminatory behaviour.
• Capability- There are two different reasons which comes under capability dismissal i.e. ill health and poor performance.
• Redundancy: It means when the employers requires no or less workers. The situations of redundancy are: business closure, less work for employees, locational change, etc. after proper consultation dismissal can take place.
• Statutory requirement: This situation arise when the employer continue to employ the person who would mean that the employer is breaking the law.
• Others: This includes expiry of fixed term contract, personality clash, conflict of interest, etc.

Let us discuss the Landmark case of British home stores v Burchell, 1978 and the Burchell test:

In this case the B has been dismissed for allegedly involved with the several other employees in dishonest staff purchases. This blame was denied by her. The tribunal find the unfair dismissal due to the method used to decide to dismiss her.

This case sets out the test which the courts often used to decide whether the employers are rational for terminating the employees for misconduct and capability issues.

The Burchell test includes three steps:

• Employer’s belief that the employee is responsible of delinquency.
• There should be genuine and reasonable grounds for the suspicion on the employee for the guilty of misconduct by the employer.
• Employer has carried out the reasonable investigation before coming to the conclusion of misconduct done by the employee.

Dismissal could appear unreasonable if following points exists:

• Inadequate investigation.
• Not believing to the evidence of the employee innocence.
• Employee’s good conduct and integrity for so long period is not been considered.
• Dismissing employee for gross misconduct for an unimportant behaviour matter. 

In this case the judgement passed by the judge is that the employment court have to make the decision regarding the following:

• Employer’s belief that the employee is responsible of delinquency.
• There should be genuine and reasonable grounds for the suspicion on the employee for the guilty of misconduct by the employer.
• Whether proper and reasonable investigation related to particular case has been carried out.

This is called Burchell test which is based on true belief, practical grounds, and after rational enquiry.  

But irrespective of that the employer has to follow the proper procedures, which are mentioned in ACAS code of practice on disciplinary and grievance procedure (ACAS, 2014)

These codes has been intended to support the employers, employees, as well as their legislatures having disciplinary as well as complaint problem at the workplace.

These codes of practise include:

• Founding the evidences of each case.
• Notifying the worker of the problem
• Proper meeting is fixed with worker to confer the problem
• Permitting the worker to be escorted at the meeting
• Determining the suitable action
• Opportunity to appeal should be given to the employee

Steps to handle the grievances in the workplace:

• Employee should know the characteristic of the grievance.
• Proper meeting is fixed with worker to confer the problem
• Permitting the worker to be escorted at the meeting
• Determining the suitable action
• If the parties are not reached to any solution then the employee  is permitted to take the complaint further.
• Suspension of overlying grievance
• Code does not apply to shared grievance.

Advise to Adam:

On the basis of the above discussion it is apparent that Adam should apply the Burchell test as provided in the above case and ACAS code of practice on disciplinary and grievance procedures should be tailed.

In the case Adam has conveyed the issue in the annual general meeting and also investigated about the issue with the employees and proper details has not been found. Adam has also askes Jane for the meeting, regarding the issue, but jane has brought the maternity leave issue in between. Still Adam can follow the ACAS code of practice on disciplinary and grievance procedures and if found guilty the action can be taken and Adam cannot be sued by the Jane irrespective of the fact that jane is pregnant and wants maternity leave because of the gross misconduct.

Conclusion:

In the above discussion we have found that the Equality Act 2010 has provided the protection against the discrimination in workplace. There were several discrimination laws previously which has more complexities. But now with the single act more simplicity has come into force. Now there is only act which provide protection against unfair practices against employees at workplace as well as wider society. There are many factors of discrimination in workplace as well as there are equal employee rights are given by the law, which can be exercised by the employee in case of any grievance.

But there can be dismissal due to some factors where employers have the right to exercise the step of dismissal without any notice that is based on gross misconduct. Gross misconduct includes dishonest act against the employer, theft, etc. the historical case of British home stores v Burchell, 1978, the court has provided Burchell test in order to secure a positive position regarding dismissal of an employee by the employer.

Three steps should be followed and proper procedures stated in ACAS code of practice on disciplinary and grievance procedure should be followed in order to claim that the dismissal is right. In the present case also, Adam was advised to follow ACAS code of practice on disciplinary and grievance procedure so that the dismissal of Jane will not be an unfair dismissal and will not fall under discrimination situation and the Adam will be protected against the court action against him. There were several discrimination laws previously which has more complexities.

ACAS. (2014). Code of practice. Retrieved from https://www.acas.org.uk/media/pdf/p/f/11287_CoP1_Disciplinary_Procedures_v1__Accessible.pdf

Advice, C. (2010). Equality Act 2010 – discrimination and your rights. Retrieved from https://www.citizensadvice.org.uk/law-and-courts/discrimination/about-discrimination/equality-act-2010-discrimination-and-your-rights/

SWARB. (2013). BRITISH HOME STORES LTD V BURCHELL: EAT 1978. Retrieved from https://swarb.co.uk/british-home-stores-ltd-v-burchell-eat-1978/