Introduction Anita has worked with Ramanco for eleven months.

She came from another service type organization with good reference as to her conduct. After completing her three-month probation with satisfactory service, her contract was confirmed. One month after being confirmed she hurt her back and has subsequently been on and off work with complaints of her back with medical certification stating the problem to be pulled muscles and strained muscles. Anita has been off sick for more that she has been to work. In total she has work for approximately 23 weeks in her eleven months at Ramanco. Anitas absence is obviously causing some problems to the other members of staff and the manager seeing that they have had to cover her rounds. Findings The manager could claim that the contract was frustrated but under the common law doctrine of frustration, an employment contract may be terminated automatically by operation of law where, through no fault of the employer or employee, circumstances arise which were unforeseen and un provided for at the time the contract was entered into make performance of the contract impossible or something radically different from what was undertaken by the contract. However under the doctrine of frustration all aspect of the task to be carried out has to be impossible to perform. Anitas task was not only to lift the water bottles and packages but also to clean and replenish the machines, which didnt require her to bend down therefore the manger, could not claim that the contract was frustrated. Case of Marshall v Palan & Wolff Ltd 1972 If the manager disposes of Anitas services when she returns to work he could be face with a claim for wrongful dismissal, that is when an employee is dismissed without proper notice (either the statutory minimum, or the minimum stipulated in their contract of employment, if longer), or without pay in lieu of notice.

By giving her one month notice as stated by the companys employment contract, she can claim unfair dismissal and places a claim to the Employment Tribunal according to the ERA 1996 an employee can claim for unfair dismissal after having worked for one year giving that the notice would allow her to work for one month before her dismissal she would have work for one year. Responding to an unfair dismissal claim can cost the company time, money and be a drain on resources and productivity. In order for her to place a claim she has to prove that there was a dismissal and the claim has to be made within three months of the dismissal to the employment tribunal, case of Avon County Council v Haywood Hicks 1978 ICR 646. According to capability reasons which covers both the incompetent employee and employees would are unable to do their job because of illness or injury. Therefore sickness of an employee is a reason, which can justify their dismissal. Giving that medical reports where submitted to the manager, it shows that he is aware of the sickness and would need to consult with Anita concerning the nature and likely length of the problem. The manager should also seek medical advice relating to Anitas condition and consider whether there might be a suitable alternative job, which he could offer her. Any authorised and correctly substantiated absence due to illness or injury will not be considered a valid reason for dismissal. Specific provisions regarding the meaning of temporary absence, and the workers obligation to provide appropriate medical certificates, are contained in Regulation 30C of the Federal legislation. An employer may not be able to dismiss a sick or injured worker who has any entitlement to sick leave, annual leave or long service leave which the worker chooses to take, or where the employer has allowed the worker to take leave without pay, because the worker would be considered to be on authorised leave. Even when the worker is not on authorised leave, the employer should not dismiss the worker if the worker has provided a medical certificate and the workers absence is consistent with that medical

certificate. Extended absence because of illness or injury may in some circumstances justify dismissal, although an employer should be cautious about dismissal for this reason. Where a sick or injured worker is to be dismissed: The worker should be consulted The prospect of a return to work should be discussed If the dismissal of the worker is to go ahead, the required period of notice should be given Employers should also be aware of their obligations to workers who return to work after an injury, in particular to ensure that the worker is given a chance to prove that he or she is capable of doing the work. Before considering dismissal, the employer must carefully assess a workers ability to perform the job and, if appropriate, modify the workplace or the duties to the needs of the worker (but only if this would not impose an undue burden on the employer). If the assessment of Anita is not done and the workplace or duties not modified to assist her disability she could bring an action against the company for disability discrimination. She would in fact have to prove that she has a disability. A disable person is defined as having physical or mental impairment that has a substantial and long-term adverse effect on a persons ability to carry out normal day-to day activities (disability act 1995). Some illness that have been subject to Tribunal judgments and have been found to be disabilities include club foot, back injury, epilepsy, diabetes and dyslexia. Case of Hart v AR Marshall Ltd 1997. Conclusion Failure to follow the procedure require for dismissal Anita can receive the following remedies: - for wrongful dismissal damages are rewarded. For unfair dismissal she can either receive re-instatement of her job or compensation

For discrimination she can get compensation (with no maximum) Recommendations One solution that the manager can do is to place Anita in one of the deports making her one of the administrative staff where her duties would not required her to do as much bending. If she still fails to attend work then he may have grounds to dismiss her. Once again the emphasis is on fairness, and as in all dismissals, dismissal should only be considered as a last resort, once all other possibilities and options have been thoroughly explored and considered

Introduction Donna and Rachel have worked for Ramanco for over one year. They were recently given a summary dismissal (dismissal without notice) from Ramanco for gross misconduct for the pilfering of unsold stocks, which amounted to 450 over a six-month period. The two under went disciplinary meeting (separately) and did confirm that they had written off stocks (a couple of partial boxes) at home. Donna stated that she vaguely thought that Rachel was using a lot of confectionery and coffee but had thought nothing about it. When asked about it Rachel stated that she had not asked for, nor taken those extra stocks from Donna. When Rachel was shown the stock sheets she stated that some of her signatures are not right. They said that when they collected stock for one another they left the stock sheet blank for the signature, which they would sign the next time they came in. this was confirmed by other staff members. They have both applied to the Employment Tribunal claiming Unfair Dismissal. Findings In order to be substantively justified, there must be a genuine reason for a dismissal (they were in breech of their implied duty to be honest) case Par v Whitbread Ltd 1990 IRLR 39. The requirements of procedural fairness may vary depending on the circumstances; (for example, in serious cases the employer will be justified in dismissing the employee without first giving a warning). If there has been serious misconduct, a summary dismissal will be justified that is, the employee can be dismissed without receiving any earlier notice or warning. However, the dismissal must still be procedurally fair. Examples of serious misconduct include:

theft or some other act of dishonesty fighting in the workplace or assaulting an employer or co-worker breaching work rules 5

deliberately disobeying a lawful and reasonable instruction from the employer possessing illegal substances at work

An employer is generally required to perform the following steps to ensure that a dismissal is procedurally fair. These will apply whether it is a summary dismissal or a dismissal after warnings.

You must carry out a full investigation into the alleged behaviour. The employee should be informed about the exact nature of the allegations and, where appropriate, that dismissal is a possible outcome of the disciplinary process.

The employee should be given an opportunity to be heard. The employee should be given the option of having a support person or lawyer present when the hearing takes place. Unless the conduct in question justifies summary dismissal, the employee must be warned and asked to stop the misconduct. In appropriate cases, the employee should be given assistance in this. An accepted procedure is to first given an oral warning, then a formal written warning, then a final written warning.

The employee should be given the reasons for the decision that you eventually reach. It is advisable that these be given before any dismissal. However, the employee has the right, within 60 days after the dismissal or after becoming aware of it, to request you to provide a written statement of the reasons; you must then provide the statement within 14 days.

A dismissal should be notified in writing. An employee can be suspended on full pay pending the outcome of the disciplinary process

Donna and Rachel must show the four pre-requisites in order to claim for unfair dismissal. The first being they must show they were employees; section 230(1) of the ERA 1996 defines an employee as an individual who has entered into or works under a contract of employment. They both work under contracts. Next they must state that they

have been working for over one year, which they have been. They have to show that there was a dismissal. Under the ERA Sec. 95 it states that an employee is to be treated as dismissed if the employer terminates the contract of employment (with or without notice) in the circumstances when he is entitled to terminate the contract without notice due to the employees conduct. The last is that the claim must be made within three months of the dismissal, which they have also done. A dismissal for misconduct is potentially fair, but the employer must show that he acted reasonably in reaching the decision to dismiss. The concepts of reasonableness under Sec 98 of the ERA are: - 98. (1) In determining for the purposes of this Part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show -(a) the reason (or, if there was more than one, the principal reason) for the dismissal, and (b) That it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.98 (2) A reason falls within this subsection if it -(b) relates to the conduct of the employee. The rules to the employees were not properly done, as the case of Brooks & Sons v. Skinner 1984 a procedure was held and also and investigation was conducted.

A fair reason was given but was the correct procedure followed. The company has no formally disciplinary procedure in their contract therefore the ACAS disciplinary procedure (see Appendix) should have been followed. They did do an investigation into the missing stock and also had a disciplinary meeting with both employees where they were allowed to state and defend themselves on the allegations. Also they were given an appeal hearing in which their appeal were refused. Conclusion Gross misconduct; this is the term used for serious misconduct, which may lead to instant dismissal (that is, summary dismissal). Acts that constitute gross misconduct are those resulting in a serious breach of contractual terms and will be for the organisation to

decide in the light of their own particular circumstances. Employers should give their employee plenty of examples of what they consider to be gross misconduct to ensure that they understand the type of behaviour they consider unacceptable. In the case of gross misconduct employers should suspend workers (on full pay) and carry out an investigation. Then a disciplinary procedure should follow with the right to appeal. (sample letters that the employer should send the employee inviting them to the meeting, appendix) Even if an employee is dismissed for serious misconduct, he or she is still entitled to outstanding wages, holiday pay and any other entitlement under the employment contract. Recommendations Ramanco has the right to choose another person to represent them in taking or defending the action of the claim for unfair dismissal. It is often very useful to have someone who can present your point of view and who can advise you at each step in the process. This includes the right to have a lawyer or other professional representative who were present at any meetings held between the parties and to assist in attempting to resolve dispute before the dismissal. All information that was collected from the investigation would be required.

Appendix 1. ACAS guidelines on what should be included in disciplinary proceedings:

State the type of action and penalties, which can result from unacceptable contact. Have a clear timetable for dealing with disciplinary matters. Give full details of the disciplinary offense. Investigate the alleged disciplinary offense before disciplinary action is taken. If suspension of the employee, during the investigation, is considered necessary, it should be on full pay and for as short a period as possible. Allow employee to be accompanied by colleague or union representative. Allow workers to put their case before a decision is made. Unless in the case of gross misconduct, not to dismiss on first offense. Provide the worker with the right of appeal. Indicate the type of offense that would be considered gross misconduct.

2. Letter to request an employee attends disciplinary hearing - sample letter/template A letter of this sort should be sent by the employer to the employee, setting out the reasons for the proposed disciplinary action or dismissal and arranging the hearing. name, address, date, reference Dear................ I am writing to tell you that (organisation name) is considering dismissing/taking disciplinary action (delete as applicable) against you. This action is being considered with regard to the following circumstances: (describe with relevant concise details, dates, etc.) You are invited/requested to attend a disciplinary hearing on (date and time) is to be held at (venue) with (names of hearing panel) where this will be discussed. You are entitled, if you wish, to be accompanied by another work colleague or a trade union representative. Yours sincerely, (from and signed by a manager of relevant authority)

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3. Letter sent by employer after disciplinary or dismissal hearing - sample letter template (name, address, date, reference) Dear................. On (date of first hearing notification letter) you were informed that (organisation name) was considering dismissing/taking disciplinary action (delete as appropriate) against you. This was discussed in a meeting on (date of hearing) Following that meeting, it was decided that: Your conduct/ performance/ etc., was still unsatisfactory and that you be dismissed (or) Your conduct/ performance/ etc was still unsatisfactory and that the following disciplinary action would be taken against you (describe fully). (or) No further action would be taken against you. (and if applicable:) I am therefore writing to you to confirm the decision that you be dismissed and that your last day of service with the Company will be (date) The reasons for your dismissal are (describe fully and refer to regulations, laws, or rules breached). (or if applicable:) I am therefore writing to you to confirm the decision that disciplinary action will be taken against you. The action will be (describe fully). The reasons for this disciplinary action are (describe fully): (and mandatory inclusion:) You have the right of appeal against this decision. Please appeal in writing to (name, title, address) within (whatever agreed/policy timescale) days of receiving this disciplinary decision. Yours sincerely (from and signed by a manager of relevant authority)

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Bibliography Agusti F. (2001) Business Law: Principles, Cases and Policy, 5th Edition Atiyah P. S. (1995) Introduction to the Law of Contract, An, Oxford Publishing Atiyah P.S.(1999) Accidents, Compensation and the Law, Butterworth Publishing Daniels K. (2004) Employment Law for HR and Business Students, Chartered Institute of Personnel and Development Duxbury R. (2003) Nutshells Contract Law, 6th Edition, Sweet & Maxwell Ltd. Halsey W. D., Friedman E. (1980) Colliers Encyclopedia 14 volume, P.F. Collier Inc. London and New York, Macmillan Educational Company Keenan D., Riches S. (2002) Business Law, 6th Edition, Longman Mckendrick E. (2000) Contract Law, Macmillan Publishing Poole J. Casebook on Contract, 3rd Edition, Blackstone Press Ltd. Ruff A. (2002) Nutcases Contract Law, 3rd Edition, Sweet & Maxwell Ltd. Roberts S. B. (1998) The Law of Organizations Twomey P. D. (1993) Business Law, South-Western Educational Publishing http://www.open.gov.uk/ www.courtsservices.gov.uk/ www.acas.org.uk www.schoolzone.co.uk

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