Purpose Statement
In assessing the advice that can be given to Richard regarding any claims he may have against Better Homes Housing Association and any remedies he would be entitled to if he was successful it is necessary to critically assess the relationship that his situation has with the legal requirements that can be associated with his position. One of the most essential functions of employment law is ensuring both the safety and equity of workers. In doing so, their ability to work within a just environment can be ensured. In considering the relationship between employers, workers, and the contracts that they make between one another, it is evident that a variety of circumstances can arise. In critically assessing the circumstances surrounding the termination of an employee, their rights, and whether any were breached through the contract being broken, are largely dependent on the context of the termination itself. Richard’s case demonstrates mitigating circumstances which present the need to reassess the termination decision that was made by his employers.
In the case of Richard, his circumstances are primarily dependent upon the opinion of both himself and his employer. However, a few important facts can be construed from the situation. He has been employed at his job for 5 years and, apparently, has never had any issues in the past. Part of his job is related to an unprescribed amount of miles being driven that can vary from term to term. If the employees reach a certain amount of mileage, they are entitled to an expense bonus. The data that the employers looked over seems to indicate that he had double the mileage that was normally prescribed. Thi is based on the AA suggested route finder and mileage that the company uses in order to form a basis for their evaluations. Even when compared to a third party system, the RAC, it seems that Richard’s mileage is higher. They noted that it was not possible for such a discrepancy to have been made unintendedly. Based on this information, Richard was terminated due to fraud. These circumstances present the basic facts behind his case. His position dictates the need to question the final conclusion of fraud made by his employers.
In consideration of these circumstances, it is apparent that there is a need to assess whether the mileage that Richard had presented was indeed in the context of his driving. This should be examined through assessment of vehicular mileage versus the amount reported. This would have been an essential aspect of the investigation rather than simply assuming his innocence. Based on this fact, a case may be brought against the employers if it can be demonstrated that he was wrongfully terminated from his position in an unwarranted manner. The primary claims that can be brought against Better Homes Housing include unfair dismissal, so long as he is able to demonstrate that he was released from his position without legitimate reasons. In doing so, he will provide the necessary grounds to be protected within the context of unfair dismissal.
Unfair dismissal is a situation in which an employee has been terminated from their position in an unjust, unreasonable, or harmful way. When contracts are terminated without notice or outside the bounds of the agreement that was made between the two parties then the employer that dismissed the worker can be liable for damages or other forms of punitive justice. As discussed, the specific circumstances under which the termination took place is an essential element in such a case. For Richard, representation of the way in which the mileage was investigated and subsequently decided upon could be considered to have been ill-informed and carried out without adequately informing the employee. In most cases, it is necessary for them to have some form of communication on the matter before the decision for termination is made. Richard’s case should consider the fact that "where the employee and the employer are represented, there are often discussions held between the representatives prior to any hearing aimed at trying to settle the matter." However, it is evident that the investigation was carried out without his prior knowledge and the decision for termination presented him with the inability to plead his case.
Interests such as fairness and transparency can be dictated through the establishment of essential rules and procedures which can be utilized in order to handle disciplinary and grievance situations. These procedures that are intended to be followed should, furthermore, be not only codified with written rules but also clear and specific so that there will not be any misunderstandings regarding the intentions of the rules. Both employees as well as those that they have chosen to represent them are better served when they become involved in the process of creating these rules and expectations that will serve as guidelines for any future discussion. For this reason, it is necessary to work to ensure that both employees and those that they work for have a consistent recognition of the underlying rules and procedures as well as where they might be referenced and how best to use them to their personal advantage. “Imposing additional restrictions on legal representation will not achieve fairness in unfair dismissal matters because it creates an imbalance between costs, legal truth and efficiency.” For this reason, Richard should have had some form of legal counsel regarding the decisions that were being made regarding his contractual obligations. This demonstrates an important consideration in relation to his ability to bring a claim against his employers.
If it can be found that there is action needed on the part of the justice system then the steps taken must be reasonable and justified in their nature. This will primarily depend on the circumstances of the case and the context in which the termination took place. When undergoing investigation, the capacity that the employer has to handle any subscribed damages is likely to be considered. Furthermore, the practicality of promoting certain actions and the moral justification for those actions will also be accounted for. This can help to ensure that the case is processed in a straightforward and unbiased manner. The underlying legality of dismissals is important to consider for this reason. Such a case is therefore the result of “the fact that an employer disapproves of the conduct of the employee, either because the employer believes that the behaviour in question may have a negative effect on the business, or because it rejects it as a personal choice on moral or other grounds.” Unfair dismissal is an important concept in regards to the rights of workers and their ability to ensure that they are not unlawfully let go of their positions. If an employee feels as though they were dismissed in an unfair manner they have the right to appeal for remedy in order to be reimbursed for the damages that were done. These damages will be based on the decision of both the legal requirements and the underlying circumstances of the termination itself.
The idea of employee status presents an important element in this regard. The contract that Richard had agreed to upon his employment would play a profound role in the level to which he is able to bring claims against the company. Only a manager that has the legal authority to do so should make the decision to terminate an employee. Furthermore, the employee should be informed as soon as possible of the reasons for the dismissal, and the issues that it was decided upon. They should also be informed regarding when exactly their employment contract will be terminated. This information should be given with ample time for them to file a claim against the employer if any grievances were being considered. The amount of time or term of the contract is an essential element to consider, as if termination is taken before the set time for the contract has expired then there will have to be demonstrated circumstances that provide proof that the termination was carried out through lawful means. One of the most essential factors is that the employee was in the position for at least 6 months in order to be considered for remedy. Furthermore, the employee must demonstrate that they were not employed on an illegal contract. "An employee must establish that there has been an effective dismissal within the criteria laid down in s95 ERA" The notion of termination is important in relation to the law. Termination demonstrates the legitimacy of the contract being ended. If it can be shown that termination was pursued by the employer based on illegitimate grounds then the integrity of the decision may come into question.
A contract for dismissal can only be pursued when an individual is terminated. Termination of employment can come to an end by agreement, completion of a fixed task, by expiry of a fixed term, by automatic termination, eg frustration of the contract, and by dismissal or resignation. If termination occurs without good reason or outside the bounds of legal authority then the considerations of legal requirements will be associated with these actions. It is evident that “agents heavily weight large low probability losses when making decisions.” The requirements for proof in employee termination were established in Devis & Sons Ltd v Atkins [1977]. In this case it was held that, when dismissing an employee, employers must honestly believe at the time of the dismissal that the circumstances justified the dismissal of the employee in contrast to the agreement of the contract. Furthermore, this belief must be based on the reasonable justification of standards. Thus, if the employer honestly believes that the employee is guilty of theft , it is irrelevant at this stage whether it subsequently transpires he is not. Positive proof that an offence has been committed is not required. This demonstrates a challenge to Richard’s ability to seek remedies for his termination. In assessing the burden of proof, it seems that he will be unable to establish a relative valuation of the decision.
A variety of practical and essential statutory procedures have been developed by which employees could be helped to go through the process of taking action against their employers. These regulations dictate that any employers would be required to go through certain procedures when making the decision to terminate employee contracts. The creation of these procedures demonstrates the importance of assessing the limitations of employee satisfaction in relation to the positions that they are put into. The inability to follow the Code of Practice by either employer or employee will be taken into account by the employment tribunal. Furthermore, any unreasonable failure to follow the Code of Practice by either party may result in an adjustment to the compensation by 25%. The policy behind the Code is to encourage employers and employees to try to resolve matters in the workplace rather than going to the employment tribunal. "An employer is expected to observe a fair procedure open to a reasonable employer ." It is generally assumed that any sort of disciplinary matter that the employee is presented with should be also provided to them in writing. The employer should hold a meeting to discuss the matter and allow the employee to be accompanied at the meeting. Similarly, the employee should be informed of the decision in writing and be provided with an opportunity to appeal which should be heard by someone not previously involved in the case if possible. This presents a question to the way in which Richard was informed of his termination.
In assessing the position that Richard is in after being terminated from his position, it is evident that there should be more scrutiny of the underlying context of the situation. It should be investigated whether or not Richard had actually put the mileage on his car. This is due to the need for his termination to be under certain circumstances. In challenging the decision, he can exercise his right to ensure justice is pursued. In any case, “the employer is obliged to act in a reasonable or fair manner towards its employees, especially in the light of the constitutionally protected right to dignity.” Richard’s case demonstrates an obligation on the part of the justice system to evaluate the contract made between he and his employer and the underlying justification of its termination without his being committed to further scrutiny.
It is necessary for Richard to act quickly if he wishes to challenge the decision that was made regarding his employment. In order to apply for remedy, the employee must file a complaint within 15 days of the termination. This presents an advantage for employers when terminated employees do not have access to the necessary information. “Considering the devastating impacts and consequences of unfair dismissal on an employee, it is important to continue the ongoing debate on the most effective way of protecting, restoring the right and dignity of an unfairly dismissed employee.” This ensures that employees are given the necessary rights and equality to enter into contracts in a fair way. Richard should seek remedies in order to challenge the response to his accounting of mileage. This will allow him to receive some form of compensation for his situation. Awards can be basic, compensatory, or other. Remedies for unfair dismissal include reinstatement, re-engagement, and compensation. The requirements of the case itself as well as the view of Richard if he is able to demonstrate he was unlawfully terminated will determine the type of remedy that is applied. This is indicated in the expectations of requirements regarding the communication that is supposed to occur between the two who had entered into the contract.
Reinstatement could be an option if Richard decides that it is worth pursuing and if it is decided that the circumstances do not warrant non-agreement to such a right. This is the primary remedy in unfair dismissal cases but occurs in less than 2% of cases. It is an order to put the employee back into the same job. If the employee requests reinstatement, an employer will be ordered to reinstate unless it is not reasonable to do so, such as in a case in which mutual trust and confidence has broken down. “The applicant’s wishes must be taken into account, and tribunals have an express duty to explain the specific remedies to unfairly dismissed employees and to ask whether reinstatement or re-engagement is wanted.” An unreasonable refusal to reinstate leads to an additional award of compensation, such as when specific performance is not available. If reinstatement takes place, continuity of service is maintained and compensation for losses sustained between dismissal and reinstatement will be ordered. In pursuing reinstatement, Richard would be able to have his contract reinstated. Re-engagement is another viable option for Richard. Similarly, this would allow him to return to his employer but would result in a different position. This is an order to return the employee to a similar job or with an associated employer. It is subject to the same tests as reinstatement. In any case, this would largely depend on both the wishes of Richard and the ultimate decision of the court. However, it is evident that Richard should attempt to seek some form of remedy for his termination, due to the way in which he was informed.
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