A.) Daisy can file an unfair dismissal complaint against her previous employer, The Chopping Block. As an employee for 14 years with the company covering the years 2002 and 2016, there was no justification for her dismissal based on the grounds of for lateness and rudeness to staff and customers in February 2016. In fact, Daisy was not given a fair notice that the question of her dismissal for incapacity was being considered by the employer, and she was not afforded an opportunity of being heard or to explain her side. The reinstatement of the discharged employee is the primary statutory remedy that is available to employees who are involved in unfair dismissal cases.
In the case of Toni and Guy Blackrock Ltd and O’Neill, the claimant alleged that he was given cheaper and lower-quality gloves to be used to handle colouring agents and complained about it to the management but his concerns were ignored. He decided to report the matter to the HSA and informed his employer. He decided to buy his own gloves, but his employer negatively reacted towards his complaint and he was terminated from his position due to lateness and stealing. The High Court held that employees shall successfully be entitled to take a penalisation claim when they first make a complaint to their employer in respect of a health and safety issue in the workplace, and they are then subject to detrimental treatment as the consequence of the actions taken by the employer.
In the given problem which involves analogous facts on the termination of Daisy, the grounds of lateness or rudeness are not valid grounds to terminate an employee. In fact, lateness and rudeness do not even qualify as a ground of incompetence, a common ground used by an employer where the performance of the employee at work is considered unacceptable. Daisy can successfully file a penalisation claim since she made a complaint to her employer in respect of a health and safety issue in the workplace, due to the poor quality of gloves used in hair color treatments that may be harmful to consumers and the employees. However, she was then subjected to detrimental treatment when she was unlawfully dismissed by the employer when she filed a complaint against HSA. The actions taken by her employer was detrimental to Daisy.
Daisy was terminated without giving her due process and an opportunity to explain her side. It is the duty of the employer to give the employee an opportunity to improve in the circumstances of his or her incompetence and that just and fair procedures should be followed prior to the termination, and that the employee is aware of the possible consequences. On the part of Daisy, the available remedies to unfairly dismissed employee just like her if to file for reinstatement and compensation. Such remedies are considered as significant improvement from the common law remedies and remedies for breach of award.
In the recent case of Berthold v Google Ireland Limited, the dismissal of the employee on the grounds of incompetence must be supported by a written warning following an unsatisfactory result in a performance expectation plan. This will give the employee the chance to improve his or her performance. If upon subsequent review and a final written warning were issued and followed by notice of dismissal, it can be construed that the employee was given proper notice. Failure to give the employee the notices about his or her performance shall be considered as illegal dismissal. In the case of Daisy, she was not informed of a company violation to justify her termination.
The reasons for the dismissal are deemed to be unfair unless the employer has proven otherwise. The burden to prove that the grounds for the dismissal are fair and reasonable rests on the employer. In deciding whether a dismissal is fair or unfair the Employment Appeal Tribunal (EAT) will look to the reasonableness of the employers to conduct in relation to the dismissal.
In the case of Daisy, she was not given a notice to explain the basis of her termination from service. In fact, Daisy only did the right thing to protect the interest of their clients who may be injured from the effects of using lower quality of gloves while mixing the hair color. At the same time, Daisy will also protect her colleagues who might also be harmed from using the lower quality of gloves in the hair salon.
The Employment Rights Act 1996 under Section 7 has enumerated the remedies that are available to dismissed employees. These three remedies are: reinstatement of the dismissed or terminated employee; re-engagement of the employee; or payment for the compensation of the employee. The first remedy is the re-instatement by the employer of the employee in the position that such employee held prior to his or her dismissal on the terms and conditions of employment immediately before the dismissal. The term of the re-instatement shall be deemed to begin on the day of the dismissal of the employee and that it will be deemed as if that such employee was never dismissed. The terminated employee can also claim the arrearages of salary from the time that he or she was illegally dismissed from the position. In the event that the terms and conditions of the employee had been enhanced during this time, such reinstatement shall be based on those terms that are favorable to the employee. The entitlement to reinstatement of the terminated employee shall only take place when such employee is without fault or blameless.
The re-engagement of the employee by the employer shall be in the position that he or she prior to the wrongful dismissal or in a different position which would be reasonably suitable for the employee under reasonable terms and conditions and taking into consideration all the circumstances that are favorable to such employee. In this case, the employee may be designated to a slightly different job, but the order will specify the terms and relevant dates prior to the dismissal. In this instance, the employee shall not be automatically entitled to claim loss of earnings or continuity of service since the employee is not totally without fault when he or she was dismissed.
The third remedy is the payment by the employer to the employee the compensation for the loss incurred during the termination. The payment to the employee should not exceed the sum that is equivalent to 104 weeks of remuneration. The law provides that such compensation is given due to the financial loss that the employee has suffered during the wrongful dismissal.
Consequently, Section 6(4) of the Employment Rights Act 1996 provides that the dismissal of an employee shall be deemed to be fair dismissal if it results from the capability, competence or qualifications of the employee to perform the work the he or she was hired to do; the conduct of the employee; redundancy of the employee, and that the employee is unable to continue to work without contravention of a duty or restriction that is being imposed by a statute or instrument; and that there are other substantial grounds to justify the dismissal.
Another ground for dismissal is the conduct of dishonesty of an employee which is a valid ground dismissal where the employee has been proven to be guilty of cheating or stealing after conducting a fair investigation. In the case of Martin v Audio Video Services, the High Court ruled that as a general rule, dishonesty does goes to the root of the contract and is a breach of the implied term of mutual trust and confidence that is expected of the employee. One of the valid grounds that will justify the dismissal of an employee for a just cause is when an employee is criminally convicted in relation to his or her employment.
The case would have been different if the employer has justifiable grounds to dismiss an employee as held in the case of O’Mahony v PJF Insurance Limited, wherein the EAT found that the posting of derogatory comments by the employee about her employer is equivalent to a breach of trust that will warrant her dismissal.
However, an employer cannot dismiss an employee where they have committed a crime outside their employment, such as in the specific case of a public order offence which does not justify a dismissal as settled in the case of Noonan v Dunnes Stores.
The facts of the case show that in January 2016 when Daisy contacted the Health and Safety Authority and reported what appears to be a breach of health and safety legislation. After informing her employer, The Chopping Block that the recommendation of the HSA is to use suitable gloves must be used at all times when mixing chemicals, the employer did not do anything about it. The mere fact that the salon did not change the cheaper gloves to more suitable ones shows that there is a violation of the health and safety legislation by The Chopping Board.
Similarly in the case of Brady v An Post , which involved with the dismissal of an employee who was a cleaner, for the crime of assault was declared to be unfair since the employee’s action did not violate the trust reposed upon him. To determine whether the dismissal of the employee for his criminal conviction or involvement in a criminal activity is reasonable and fair, other key factors were considered such as to determine if the bond of trust between the employer and employee was broken to warrant a dismissal. In this given case, Daisy did not violate any company policy for voicing out her opinion and that she was neither holding a position that violated the trust reposed upon her by the employer.
In Barry v Irish Linen Services , the termination or dismissal of the complainant was considered as fair when he was involved in an attempted robbery using a company vehicle. The test to determine whether the claimant’s criminal conduct that will render him unsuitable for his employment to be determined by the employer or that which is undesirable or unacceptable for the other employees.
In another analogous case of Kavanagh v Cooney Jennings Ltd, the claimant pleaded guilty to the allegation charge of an indecent assault, where his employers considered that the nature of the charges as an offense that can interfere with and damage their relationship with its existing clients which justifies the dismissal of the claimant. The Employment Appeal Tribunal (EAT) accepted ruled that the employers’ fears were based on fair and reasonable grounds to warrant the dismissal of the employee.
In the case of Daisy, there should be valid grounds to justify her termination or dismissal. Otherwise, if it has been proven that the employer dismissed the employee without valid grounds, the employer shall be liable to pay damages for wrongful dismissal. Thus, when an employee is dismissed without notice for gross misconduct, his or her termination shall depend on the contract of employment. The standards that are to be used by the employer must be based on reasonable grounds to be determined by the employer. The burden of proof rests on the employer to justify the dismissal of the employee. It has been observed that the courts will adopt procedural fairness in every contract of employment to protect the employee.
There are several remedies that are available for the employee for wrongful termination. In the event that a wrongful termination had taken place, an action for damages for breach of contract based on wrongful dismissal, shall be filed by the employee. Another alternative action can be filed by the employee that is based on unfair dismissal action shall fall under the Unfair Dismissal Act of1977-2007.
The wrongful dismissal actions should be filed within 6 years under the Statute of Limitations Act, and the amount of damages that should be given to the employee by the court is generally the amount of notice such as the amount that is equivalent to the 6-month salary of the employee to recompense him or her for the wrongful dismissal. The compensation shall be computed from the date of the hearing and takes into account the following factors including the salary, bonuses, average overtime pay rendered by the employee. The entitlements of the employees should provide notice and must be computed and assessed based on any lost pension rights.
Daisy argues that she was dismissed for other reasons and there was bad faith on the part of her employer. The fact that she reported that The Chopping Block changed their suppliers of latex gloves and began using a cheap and lower quality gloves is a clear indication that they violated a health and safety legislation. In fact, the findings of the Health and Safety Authority revealed that the salon must use only suitable gloves should be used at all times when mixing chemicals for health and safety reasons. The act of the employer in giving a letter of dismissal to Daisy on the ground of misconduct is an indication that the company illegally terminated her.
B.) Daisy can file a direct discrimination case against MillionHairs. It was clearly shown that MillionHairs is liable for direct discrimination when it refused to hire Daisy for the position of head stylist, despite her 12-year experience in the same business. The facts show that Daisy was discriminated for her religious belief when she revealed that she was a devout Christian and wore a crucifix during the interview. The three-panel team of the company explained that wearing of jewelry is violation of a company policy pertaining to the dress code. In fact, direct discrimination was committed because the employer cannot show any interview mark sheets or interview notes taken during the interview.
It is important for the employer to allow their employees to dress in a particular way for reasons in relation to their religion. In case MillionHairs has an existing policy on dress or appearance, it should be flexible and reasonable concerning the clothes, jewelry and markings, which are traditional within some religious beliefs. It bears to stress that unjustifiable policies and rules can also result to indirect discrimination and companies should ensure that dress code implemented is a proportionate means to achieve a legitimate aim. The legitimate aim in implementing rules on dress or appearance may cover health and safety, security or the need to present a professional image to the public and clients. The companies should be guided by the principle that the impact of dress and the ability of the employees do their job must be the basis in decision-making. The decisions of the employer must always be fair and consistent by respecting the religious belief of their employees.
In the given case, Daisy was clearly discriminated in the workplace for her religious beliefs when the employer asked her to remove her necklace that had a crucifix which is part of her religion. It is the constitutional right of an employee to choose his or her own religion and to act based on such religious belief. In the similar case of McAteer v South Tipperary County Council, the tribunal held that human rights and freedoms protect a right of an employee to manifest his or her religion since the manifestation of religion is covered within the Employment Equality Acts. In the case of Mcateer, he was entitled to receive compensation after the Equality Tribunal found that he was terminated by his employers on the basis of direct discrimination over his religion. Here, Mcateer claimed that he merely shared his faith with others and such practice constituted a fundamental ideology of his belief system because he was an evangelical Christian. He believes that he has to share his faith with other people and that the freedom to believe and to act on one’s own belief should be respected at all times.
In this given case, MillionHairs is liable for direct discrimination since Daisy, who was a job applicants are treated less favorably than the others because they hold their own particular religious or philosophical belief. On the other hand, the employees are also protected from direct discrimination because are related or associated with a person who holds or does not hold a particular religious or philosophical belief. It is unlawful to decide not to employ a person, refuse employment, refuse them and offer them adverse terms and conditions based on their religion.
On the other hand, indirect discrimination occurs when an organisation implements practices, policies or procedures that appears to be applicable to everyone, but has the effect of disadvantaging people of a particular religion or belief. Indirect discrimination shall not be considered as unlawful if it can be justified where it can be shown that there is a legitimate aim for such practice.
The employer was not able to provide mark sheets or interview notes to justify the reason why she was not hired for the position. In order to avoid charges of discrimination, the employers must be able to show that the “job content” factors that are needed for the position should have objectively demonstrated the skills and work performance of the employee, as the primary reason to be considered for such position or a function. Thus, other factors including race, age, gender, religion or social standing must not be the reasons for rejecting the applicant for the job vacancy.
The business manager of MillionHairs should not only consider the personal preferences on the basis of the “job context” factors since they do not relate to the job or work that has to be performed be the employee or “would-be” employee. Rather, the basis for hiring the employee should be based on the employment environment and non-job-related characteristics of the person who is required to render performance for the position applied for. Finally, the employer should adopt practices and procedures that prohibit discrimination on these personal circumstance and focus on the qualifications, skills and performance of the employee who is required to render job performance.
In this given case, MillionHairs is liable for direct discrimination since Daisy, who was a job applicant was treated less favorably than the others applicants because she holds her own particular religious or philosophical belief. The employees are protected under the law from direct discrimination even if they hold a particular religious or philosophical belief that is different from the religion of majority of employees in a company. It is unlawful to decide not to employ a person, refuse employment, refuse them and offer them adverse terms and conditions based on their religion. Thus, MillionHairs does not have the right to reject the application of Daisy for the position on the basis of her religion. An employee who is practicing her religion in the workplace cannot be held liable for gross misconduct.
On the other hand, indirect discrimination occurs when an organisation implements practices, policies or procedures that appears to be applicable to everyone, but has the effect of disadvantaging people of a particular religion or belief. Indirect discrimination will not be unlawful if it can be justified where it can be shown that there is a legitimate aim for such practice.
Finally, Daisy can file a case against MillionHairs for direct discrimination when she was not hired based on her religion. This is a clear case of indirect discrimination occurs when an organisation implements practices, policies or procedures that appears to be applicable to everyone, but has the effect of disadvantaging people of a particular religion or belief. On the part of MillionHairs, it may be exempt from accountability based on indirect discrimination if there is a showing that there is a legitimate aim for such practice of prohibiting jewelry in the workplace. However, if the company fails to present any justifiable grounds to prevent their employees from wearing jewelry in the workplace, it may be held liable for indirect discrimination.
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Karen Wheelright. “Remedies for Unfair Dismissal Under the Workplace Relations Act of 1996-A Fair Go All Around?”. Macquerie Law Journal, vol.1, no.1, 2001, pp.173-192.
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Website
The Advisory, Conciliation and Arbitration Service, ACAS 2014, “Religion or Belief and the Workplace”, 2016,
< http://www.acas.org.uk/media/pdf/d/n/Religion-or-Belief-and-the_workplace-guide.pdf> accessed May 9, 2016.
