Introduction

Once employees enter into an employment contract with their employers, they become governed by the employment and labour laws, which employers must comply with in their interactions with and operations involving the employees. This also applies to situations which call for reorganisation. At such times, justified as the need for reorganisation may be, employers and managers have to bear in mind that reorganisation can also be a very difficult and unsettling experience for their employees. Considering this, reorganisation is governed by laws, in order to keep the experience as fair as possible between the employers and their employees.

Reorganisation itself may involve transferring a part of the firm to another location, or redundancy. As employer-employee relations are governed by employment contracts, which are binding agreements between them, the contract may itself need to be altered in order to make way for the reorganization requirements. This has to be done mutually as it is an agreement and for this the employer needs to explain the situation in the most clear and transparent way possible. It is possible at times that an agreement may not be reached. At such times, the employer may give a notice of termination of contract to the employee. Thereupon, a new contract may be offered to the employee who may accept it to maintain continuity of his employment. The employee may approach the Employment Tribunal if he wishes to reject the contract, as such rejection will amount to termination of contract and he may wish to challenge such termination as being unfair. Employees can make complaints to the Employment Tribunal under the Employment Rights Act 1996, s.111.

In case the employer no longer needs the job to be performed, then he can show redundancy of the employee under Employment Rights Act 1996, s.139. Redundancy is seen if the dismissal is attributable to the ceasing of the business where the employee was employed or where the business no longer will be carried out in the place where the employee was employed. In such situations, employees with two years' continuous services are entitled to redundancy payment. If the employer wants to make 20 or more employees redundant within 90 days, then he must consult any recognized trade union and elected employee representative, start consultation at least 40 days before the first dismissal takes place, look at ways of avoiding dismissals, reducing the numbers to be made redundant and mitigating the effect of the dismissals, notify the Department of Business, Innovation and Skills (BIS) at least 45 days in advance of the first dismissal taking effect.

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Reorganization usually involves restructuring the operations of a company to focus on the main activities and outsource others (Grant, 2001). It results from the economic pressure that firms face due to the effects of globalization. This will lead to many changes in the organization, and one of them might be the need to downsize its labour force. In this particular organization, the reorganization will involve relocating employees too other and outsourcing a certain function from a subcontractor.

In case of outsourcing work to a subcontractor, the employees and the work remain the same, but the employer changes. This situation is governed by the Transfer of Undertakings (Protection of Employment) Regulations 2006. Here the previous employer is the outgoing employer and the new employer (sub contractor) is the incoming employer. This is a ‘service provision change’ (ACAS 2015). In a service provision change, employees assigned to the organised grouping of employees automatically transfer to the incoming employer at the point of transfer. Thus, contracts of employment, including all terms and conditions of employment such as pay, commission and bonus entitlements, holidays, job title and function, and sick pay provisions also transfer to the incoming employer (ACAS 2015). It is important to remember that in case of a transfer, the rights and liabilities of the employees remain the same and the incoming employer cannot change the terms and conditions of their work substantially. In case that happens, the employee can terminate the contract of employment and this may be treated as a dismissal. The employee can then claim constructive unfair dismissal at the Tribunal.

For this particular organization, the employer will need to consider various aspects concerning the idea to move the employees to new sites. One of the aspects is the nearness between the current work site and the intended one. Another aspect that the employer should consider is the consideration about the employee's family, and how it will be affected if the employee moves to the new site.

In any case, in cases of redundancy, employers should offer alternative work to employees in order to avoid redundancy. Such offers should be unconditional and in writing, and made before the employee’s current contract ends (BIS 2016).

Bullying at work

Bullying at work involves words or acts committed against an employee that are intended to offend, intimidate, humiliate or degrade them, and that can end up isolating the employee in the workplace or affecting them mentally (Walsh, 2013). Bullying comes under the generic definition of harassment. Both statutory and common law provide specific duties to the employer to prevent and take action against bullying. Under the common law, employers have certain implied duties that are part of the employment agreement, although not specifically or expressly provided in the contract. There is an implied duty of health, safety and welfare wherein the employer impliedly agrees to take reasonable care to ensure it employees' health, safety and welfare at work. Another implied duty of the employer is to provide a safe working environment to the employees (Painter and Holmes, 2015, p.142). When an employee is bullied at the workplace, the employer breaches the implied duty to take care of health and safety of the employee. The employee may then claim breach of contract by the employer.

Where employees are being bullied, they have an option to take an action to the Employment Tribunal. It is important to note that employers are responsible for preventing bullying and harassment and they may be liable for any harassment suffered by their employees, even if such harassment was not known to them.

Bullying at workplace falls under the Health and Safety at Work, etc. Act 1974. This Act, s.2 enjoins upon the employers the general obligation to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees. In the case of bullying, employers work against their legal obligation of ensuring that the employees are safe at work.

One of the three employees is being bullied for their nationality. While discrimination can take different forms and can happen in a number of settings, discrimination in employment is more commonly litigated against (Barnard 2016). As discrimination in workplace can be effected from recruitment to retirement, the state takes it very seriously and in the UK there are a number of measures that the state has taken to contextualize and penalize such discrimination (Leigh 2008). Another important point to remember is that there are certain protected characteristics that are recognized under the Equality Act 2010, s.4. Race, which includes nationality is a protected characteristic of the employee and therefore there cannot be any discrimination or harassment on the ground of nationality (Wadham et al, 2012).

In this case, the employer breaks the obligation of duty of care towards the employee because bullying him because of his nationality interferes with his wellbeing making him not good health wise. The employer causes stress to the employee by bullying him on the ground of his nationality.

Employers have a ‘duty of care’ for all their employees. If the mutual trust and confidence between employer and employee is broken – for example, through bullying and harassment at work – then an employee can resign and claim ‘constructive dismissal’, at an Employment Tribunal on the grounds of breach of contract (ACAS 2014).

The second employee who was bullied for refusing to join a trade union was protected by the employment law, which gives various rights to employees concerning joining trade unions. These rights include the right to or not join the trade union, to quit or retain membership of a trade union or be a member of more than one trade union (Cihon & Castagnera, 2011). The Equality Act 2010 is important in this context because it prohibits discrimination in the context of work, membership of associations, access to goods, education, services and facilities, including housing. The European Convention of Human Rights (ECHR), article 11, read with the Human Rights Act 1998 (HRA 1998) also protects freedom of association. This includes freedom to join or to not join a trade union. A compulsion to join a trade union will be an infringement of this rights. The employer is under a duty to protect this right of the employee. Under Safety and Health Act, this employer is under obligation to exercise a duty of care by providing safety to the employees at their workplace. Bullying them for refusal to join a trade union, therefore, amounts to a breach of this duty of care. The employee can, therefore, claim damages for this breach of duty by the employer.

The third employee is bullied for supporting a certain football club. Under the employment law, it is unjust to bully employees at the workplace for their preferences or opinions that are not even related to their job or the specific organization. Under the Equality Act 2010, discrimination on the basis of membership of association is prohibited and the employer in under a duty to provide a work environment where such bullying is taken action against. Bullying the employee for supporting a certain football club is a breach of this duty because it causes stress to the employee and consequently affecting his health to a point where he needs to seek medical help. The employee may also claim damages in the Employment Tribunal.

Disciplinary measures

Employees in an organization are expected to observe the rules and regulations set for the operation of the particular organization. Some employees might at times, go against these rules and therefore calling for disciplinary action to be taken against them as a corrective measure for their behavior. The employment law advocates for disciplinary actions to be taken upon the employees who go against the rules and regulations of the organization as well as reward mechanisms for those who perform exceptionally. The workplace rules and regulations in any organization are intended to maintain order, protect employees’ rights and maintain a high level of operational efficiency. Under the Health and Safety at Work Act, there should be a safe working environment in every organization, whose maintenance requires the efforts of the employer as well as employees. Therefore, an employee under drugs influence might result in acts that compromise the safety of the work environment. The employer should come up with policies that prevent employees from going to work being under drugs influence (Guerin, 2011).

The ACAS Code of Practice (2015) is to be followed by the employer in dealing with this employee. This will ensure that the employer follows all the rules regarding disciplinary action and minimize the chance of an employee action through the Employment Tribunal. As there is an allegation of the employee’s drug abuse while at work, the employer must carry out a fair and transparent investigation to find out if that really was the case (ACAS 2015). The employer must also ensure that the employee is informed of the basis of the problem and give him an opportunity to put his case before any decisions are made (ACAS 2015). An important provision is that employers should allow employees to be accompanied at any formal disciplinary or grievance meeting (ACAS 2015). This is a statutory right and employees have the right to be accompanied by a companion at meetings where some warning may be made to the employee, or some disciplinary action can be taken against him (ACAS 2015). The employer must ensure that the person carrying out the investigation and the person carrying out the disciplinary hearing are not the same (ACAS 2015).

Communicating these policies to employees is another important step that the employer should take, and this should be done using a staff handbook. Employers may also use newsletters, email alerts and publicity campaigns to communicate the policies on use of drugs at the work place. In this case, the employer is going against the standards and policies preventing employees from going to work being under drugs influence. The disciplinary procedure, therefore, should be on this employee.

It is also pertinent to note that a decision to dismiss should only be taken by a manager who has the authority to do so. The employee should be informed as soon as possible of the reasons for the dismissal, the date on which the employment contract will end, the appropriate period of notice and their right of appeal (ACAS 2015). The right to appeal is an important right of the employee and not providing it will expose the employer to a risk of action in the employment tribunal, irrespective of how justified the dismissal may be in light of the actions of the employees.

The disciplinary procedure is usually applied in an organization upon an employee who goes against the set standards. This encourages other employees to follow the set standards at the place of work. A formal disciplinary action for the employee will start with an investigation, which should be conducted by a person from the department of human resource. The will help the investigator find information regarding the employee’s guiltiness of the suspected allegations. If following the investigation, the representative concludes that the employee has a case to answer, the employee b is then called to attend to attend a disciplinary hearing. The employee is allowed to be accompanied by a colleague or by a representative of the trade union. A letter is sent to the involved employee to notify him of this hearing, and it should contain the venue and date of hearing, as well as the allegation against him, explaining why he should not be under drugs influence while at work. It should also contain a statement of why the allegation is serious in the place of work and a statement confirming his approval of the employee being accompanied by a colleague or a representative of the trade union. The head of the human resource department heads this hearing, and it will enable the employee to answer the drugs allegations against him and challenge the evidence obtained from the investigation that they feel is not true (Willey & Murton, 2009).

The employee should be granted a notice of not less than ten working days to enable him to prepare for this hearing. In the presence of a witness statement, the witness obtained during the investigation should be available at the hearing to give confirmation to the witness statement and give the concerned employee answers to his questions as well as the person leading this disciplinary hearing. Considering the information from either side, the head of the human resource department or any other person heading the hearing should come up with a conclusive decision, which should be communicated to the employee, detailing the kind of disciplinary action taken against them (Nairns, 2011). If an employee does not attend the disciplinary hearing for unavoidable reasons such as sickness, the hearing is rearranged for another day, and if he still fails to attend, the department head makes the final decision using the information obtained from the prior investigation. In the case of this particular employee, it is important for him to understand the allegations before attending the hearing. The allegations in this case if confirmed true may lead to the dismissal of the employee. The evidence of the allegations should be provided, as well as the dates that employee was under drugs influence. If the employee is found guilty at the disciplinary hearing, he will be evaluated to determine whether he had committed such misconduct before and if not, he will be issued with a warning letter and any other applicable form of punishment such as suspension. However, if the employee had been accused of such misconduct before, he will be dismissed without the issue of any notice to him.

Dismissing or taking any other action against this employee without going through the disciplinary hearing within the organization will lead the employee raising claims of unfair dismissal in an employment tribunal. The hearing procedure, therefore, is important because it reduces the chances that the case is to be defended in an employment tribunal. The head of the disciplinary hearing should also ensure that a fair decision is arrived at, considering all the matters and information provided before or at the time of the hearing, which should as well be discussed at

the hearing time. This will prevent the employee from raising a petition at the employment tribunal on the grounds of unfair judgment in a disciplinary hearing (Daniels, 2004). The decision will be dependent upon how serious the allegation is, what disciplinary action was taken before regarding a similar case as well as the previous record of the employee. In this case, the decision will be dependent upon other cases regarding employees being under drugs influence at work, the record of this employee determining whether he has had any form of misconduct before and the seriousness of the allegation about rules and regulation of the organization. What the decision arrived at is communicated to the employee using a written document which should contain a summary of the hearing’s discussion, the reason for the decision made, the applicable corrective measure, the applicable assistance that management can offer, and what repercussion will follow if the employee fails to comply with the decision. This will be a formal procedure for disciplining the employee and at the same time reducing the chance of solving the case in an employment tribunal.

References

    1. ACAS. ‘Varying a contract of employment’, http://www.acas.org.uk/media/pdf/q/k/Varying-a-contract-of- employment-Acas-leaflet.pdf ACAS. (2015). Code Of Practice On Disciplinary And Grievance Procedures. London: The Stationary Office.
    2. ACAS. (2015). ‘Handling TUPE transfers’. Web. http://www.acas.org.uk/index.aspx?articleid=1655 Barnard, C. (2008). New Developments in Employment Discrimination Law The UK Report. New Developments in Employment Discrimination Law, 2008 JILPT Comparative Labor Law Seminar. Web. <http://www.jil.go.jp/english/reports/documents/jilpt-reports/no6.pdf> Bernard, C. & Ludlow, A. (2015). Enforcement of Employment Rights by EU-8 Migrant Workers in Employment Tribunals. Industrial Law Journal, 45(1), 1-28.
    3. BIS. (2016). Making Staff Redundant. Web. https://www.gov.uk/staff-redundant/avoiding-redundancies Cihon, P. J., & Castagnera, J. (2011). Employment & labor law. Mason, OH: South-Western Cengage Learning.
    4. Daniels, K. (2004). Employment law for HR and business students. London: Chartered Institute of Personnel and Development.
    5. Leigh, I. (2008). Hatred, Sexual Orientation, Free Speech and Religious Liberty. (2008) ELJ, Vol. 10 Issue 03, pp 337-344.
    6. Guerin, L. (2011). Employment law: The essential HR desk reference. Berkeley, CA: Nolo.
    7. Grant, B. (2001). Employment law: A guide for human resource management. London: Thomson Learning.
    8. Fisher, B., Lab, S.P. (2010). Encyclopedia of victimology and crime prevention, volume 1. New York: Sage Publications.
    9. Nairns, J. (2011). Employment law for business students. Harlow: Longman.
    10. Painter, R.W., Holmes, A.E.N. (2015) Cases and Materials on Employment Law. Oxford: Oxford University Press.
    11. Wadham, J., Ruebain, D., Robinson, A., Uppal, S. (Eds). (2012). Blackstone’s Guide to the Equality Act 2010. Oxford: Oxford University Press.
    12. Walsh, D. J. (2013). Employment law for human resource practice. Mason, OH: South-Western Cengage Learning.
    13. Willey, B., & Murton, A. (2009). Employment law in context: An introduction for HR professionals. Harlow, England: Pearson Longman.

Bibliography

    1. Reitz, A. E. (2007). Labor and employment law in the new EU member and candidate states. Chicago: American Bar Association Berkowitz, P. M., Müller-Bonanni, T., Reitz, A. E., & American Bar Association. (2008). International labor and employment law: Vol. 2. Chicago, Ill: Section of International Law, American Bar Association.
    2. Inceoglu, I. (2002). Organizational culture, team climate, workplace bullying and team effectiveness: An empirical study on their relationship. München: Herbert Utz Verlag Wissenschaft.
    3. ACAS. (2014). Bullying and harrassment at work. Web. http://www.acas.org.uk/media/pdf/i/t/Bullying-and-harassment-in-the-workplace-a-guide-for-managers- and-employers.pdf Banfield, P. (2011). Introduction to human resource management. Oxford: Oxford University Press.
    4. Workplace Law Handbook 2011: Employment Law and Human Resources Handbook. (2010). Cambridge: Workplace Law Group.

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