Sample M21764 Business and Employment Law Assignment

M21764 Business and Employment Law Assignment Sample

Task

This is an individual assessment. This piece of coursework which comprises 50% of the total marks for this module, consists of questions based on a case study and requires you to demonstrate problem-solving skills and undertake, and communicate clearly, objective analysis of complex factual situations in the context of employment law; access and critically analyse paper or electronic primary and other legal sources; conduct independent research on legal topics.

Please read the case study below and ANSWER QUESTIONS 1 and 2.

AVO is a company that provides financial management and auditing services for businesses.

Due to profits made from last year, AVO did set up new branches and hired more staff. Ms

Ariana was recently appointed at AVO as a sales and marketing representative.

Ms Ariana’s contract included a 6-months probationary period. Ms Ariana’s contract also allows her to leave work at a time she chooses once her work for the day is done. Her contract says she is an Independent Contractor, and that either party can terminate the contract by giving one month’s notice. She is paid £600 per week via the AVO’s PAYE Payment system. Although she has some flexibility with her working pattern, she is required to seek permission for any holiday or annual leave and inform her line manager. Ariana is also required to dressin the Company’s uniform and to work exclusively from the premises of the company. At the end of the month, she noticed that her salary was shortened by the deducted period she was on holiday. When she raised it with the HR, she was told that her contract specifies her as an Independent Contractor, and so, she is not entitled to holiday pay.

Ms Ariana is so excited with her new job and although she has worked for 3 months so far, she is already well spoken of by other colleagues and the line manager. Ms Ariana is also a

Christian who loves to share her faith whenever the opportunity arises. One day, Ms Ariana asked her line manager for permission to use one of the office rooms during lunch break to share her faith, for which she was granted permission. Many of her colleagues attended the talk she hosted during their lunch break and gave her positive feedback, with some of her colleagues even wanting to learn more about her faith.

Two weeks later, Ms Ariana was called unto the office by her employer, and in the presence of two other senior staff, and a HR personnel, was handed a letter explaining that they will no longer need her working for the company, and that she should take her personal belongings and leave the office premise immediately. When she asked why this sudden decision, she was told that this company is not a place for sharing religious beliefs, as it is distracting to the work of the company.

Question 1

Ms Ariana also feels she is being discriminated against on the basis of her religion. Advise Ms Ariana on the scope of the law relating to religious discrimination under the Equality Act 2010.

Question 2

Before Ariana was fired, she had taken a three weeks holiday. However, AVO has noted that they will not pay her for those holidays as she is an independent contractor. Advise AVO on what is the employment status of Ms Ariana, and whether Ms Ariana has a legal claim for the unpaid holiday.

Solution

Question 1

Issue

The question that has to be answered in this instance is whether Ms Ariana's employer, AVO, engaged in unlawful discrimination against her on the basis of her religion or belief. Such conduct is forbidden under the Equality Act of 2010. For Assignment Help, The most important issue that has to be addressed is whether or not the acts that were performed by AVO were discriminatory.

Law

The Equality Act of 2010 makes it illegal to harass, intimidate, or otherwise victimise someone on the basis of their religion or belief in any way, whether directly or indirectly . Someone is given less favourable treatment due to the fact that it is directly related to their religion or belief in the event of direct discrimination. When a law, criteria, or practice is used that places persons who share a specific religion or belief at a disadvantage relative to others, this is an example of indirect discrimination. Direct discrimination happens when an individual is treated differently because of their religion or belief. When an employee is exposed to undesired behaviour connected to their religion or belief that violates their dignity or produces an intimidating, hostile, degrading, humiliating, or offensive environment, this is considered harassment . Harassment may also occur when an employee is subjected to conduct that is objectionable. The term "victimisation" refers to the situation in which an employee suffers a negative consequence as a result of having filed a complaint of discrimination or harassment at work or having supported the filing of such a complaint by another employee. Moreover, a worker is guaranteed the right under Section 39(2)(c) of Employment Act 1996 not to have their employment terminated in an unjust manner by their employer . When an employer terminates an employee's job without completing the appropriate processes, when the termination is based on discriminatory grounds, or when the termination is otherwise unjustified, these are all examples of the kind of situations that might lead to an unfair dismissal. In addition, An employee who is terminated in a manner that is inconsistent with their rights as outlined in the Employment Rights Act of 1996 has the ability, as outlined in Section 136 of the Act, to file a claim with an employment tribunal. Before bringing a claim, the worker is required to go through the procedure of early conciliation with the Advisory, Conciliation, and Arbitration Service (ACAS) .

Application

Ms Ariana claims that her job at AVO was terminated because of her religious convictions and the fact that she was prepared to communicate those opinions with her colleagues during lunchtime breaks. If what you say is accurate, then you are engaging in direct discrimination on the basis of religion or belief, which is against the law according to the Equality Act. In the case of Grainger plc v. Nicholson [2010], it was determined that a person did not need to be of the same faith as others who were treated more favourably in order for them to be considered a victim of discrimination . This was one of the key findings of the case. In the situation with Ms Ariana, her religious beliefs played a part in her obtaining care that was less than ideal.

Ms Ariana may also have a claim for indirect discrimination if the policy of not allowing religious conversations in the workplace impeded her ability to convey her religious views in a manner that was disproportionately more difficult for her than it was for other workers. In the case of Essop and Others v. Home Office (UK Border Agency) [2017], it was decided that a law, criteria, or practise that places persons at a disadvantage relative to others on the basis of a protected trait, such as religion or belief, is considered to be indirectly discriminatory . This case was cited as the case that established this principle. The onus of proving that a particular provision, criteria, or practise is a proportional method of accomplishing a lawful purpose lies squarely on the shoulders of the employer.

In addition, if Ms Ariana was terminated after requesting time off to communicate to her colleagues about her beliefs over lunch, she may have a claim for being a victim of workplace discrimination. It was established in the case of the City of York Council v. Grosset (2018] that victimisation might occur when an employee is exposed to a disadvantage for filing a complaint regarding discrimination or harassment or for supporting the complaint of another individual . If Ms Ariana can provide evidence that she was the victim of wrongdoing, she may be eligible for compensation for the injuries she sustained as well as other forms of relief.

If Ms. Ariana encountered any inappropriate behaviour linked to her religion or belief that violated her dignity or produced an intimidating, hostile, degrading, humiliating, or offensive atmosphere, then this case may also include harassment as a factor. It was decided in Khan v. G4S Cash Solutions (UK) Ltd. [2018] that harassment may take place even if the person responsible for it does not intend to harass the person who is the target of the harassment . It is important to consider how the conduct affects the victim, namely if it is unwelcome, whether it breaches the victim's dignity, or whether it creates an environment that is frightening, hostile, demeaning, humiliating, or otherwise unpleasant.

Lee v. Ashers Baking Company Ltd [2018] is another case that could be cited in this context because it deals with discrimination based on a customer's sexual orientation and political beliefs when the bakery refused to decorate a cake with a message supporting same-sex marriage . Case studies like this one show why it's crucial to protect people from prejudice based on their religious or other identities. It also highlights the need of companies to be cautious not to break discrimination laws while offering their products and services to the general public.

Regarding an employer's duty to accommodate a worker's religion, the case of Chondol v. Liverpool City Council [2018] is instructive . An employee in this case claimed she was discriminated against because of her religion when she was forced to work on Fridays, a day of worship for Muslims. The Court of Appeals ruled that the company engaged in indirect discrimination against the employee because of her religion since it did not offer any "reasonable accommodations" for her religious views. It is clear from this case that businesses cannot afford to wait for complaints about discrimination based on employees' religion before taking corrective action.

Conclusion

It is possible that Ms Ariana has a claim for religious discrimination against AVO if she is able to prove that she was treated less favourably by AVO due to the fact that her religion or beliefs were taken into consideration. It is possible that she was subjected to prejudice in this situation since she was fired shortly after informing her colleagues about the opinions she had during a lunch break. It is possible that Ms Ariana is qualified for a variety of compensations.

Question 2

Issue

AVO's potential liability for unpaid holiday pay to Ms Ariana based on her employment status

Law

The employment status of a person is dependent on a number of variables, including the type of job that is done, the amount of control that is exerted by the employer, the degree to which the worker assumes financial risk, and the general working relationship between the parties. The stipulations of the contract are taken into account as well, although they are not the deciding factor. Under the Working Time Regulations 1998 and Employment Rights Act 1996 , a person is eligible for a number of employment rights, one of which is paid for time spent on holidays if that individual is regarded to be an employee.

Application

Regarding the situation between Ms Ariana and AVO, the contract that Ms Ariana signed indicates that she is an independent contractor. In order to evaluate her employment status, the courts will go beyond the terms of the contract and investigate the actual working relationship that exists between the parties. According to Employment Rights Act 1996, section 4, there are a number of indications that point to the possibility that Ms Ariana is an employee rather than an independent contractor . The section implies that a person is considered to be an employee if they have engaged into a contract of employment or are working under the terms of such a contract, regardless of whether the contract is stated, implicit, written, or oral.

For instance, she is obliged to do all of her duties at the facilities owned and operated by AVO, to wear the uniform provided by AVO, and to get authorisation before taking any vacation time or yearly leave. A standard weekly wage is also sent to her via the PAYE payment system on a consistent basis. The fact that she is required to work entirely from AVO's premises and get permission before taking time off hints at a greater degree of control than one would anticipate for an independent contractor . Her employment agreement states that after her job for the day is over, she is free to leave work at any time she chooses, but she must do so after obtaining permission beforehand.

The defendant in Pimlico Plumbers Ltd and Mullins v Smith (2018) was a plumber who had worked as an independent contractor for Pimlico Plumbers for some time . Mr. Smith, the plumber, claimed that he was entitled to a wide range of benefits as an employee of the firm. The court ruled that Mr. Smith was not a contractor as stated in his contract but rather an employee. The court reached its decision after considering evidence suggesting that Mr. Smith was subject to significant supervision by Pimlico Plumbers, that he was required to conduct his services in person, and that he wore a uniform supplied by the company.

In the case of Ms. Ariana, AVO is able to exercise some control over her employment by requiring that she do all of her tasks inside their premises and wear clothing that conforms to their requirements. Given this, it's more probable than not that she is an employee, not an independent contractor, even if her contract says otherwise.

The firm that employed the valets for the vehicles in Autoclenz Ltd. v. Belcher and Others (2011) claimed that the valets should be classified as independent contractors rather than employees . The valets, on the other hand, insisted that they were employees who were due a number of protections under the law. As the court said, the valets' contractual contracts did not reflect the reality of their working relationship with Autoclenz Ltd, hence the court found in their favour. The court's ruling was affirmed, and the valets received their pay. The court's conclusion was based on the fact that the valets were required to do the job themselves and that Autoclenz Ltd retained substantial control over the valets' performance.

Ms. Ariana's situation with AVO is similar to the Autoclenz case in certain ways. Despite the fact that she is technically an independent contractor, AVO has a great deal of say in her day-to-day operations since she must use only AVO equipment and wear AVO uniforms. Moreover, she has no choice but to work within AVO's regular business hours. This evidence suggests that Ms. Ariana is an employee, contrary to the terms of her contract.

Uber drivers claimed they should be considered employees rather than independent contractors in the high-profile litigation Aslam and Others v. Uber BV and Others (2018) . The court sided with the drivers, ruling that they were employees entitled to a number of protections under the law, including the entitlement to a minimum wage and paid vacation. The judge's decision was based on many factors, including Uber's extensive control over the drivers' work and the fact that the drivers had little input over how they were expected to carry it out.

In the case of Ms. Ariana, AVO's tight control over her job is shown by the fact that she is required to do all of her work at their offices and in their uniform. The fact that she is required to do all of her work at AVO headquarters further suggests that privacy is highly valued there. Given the company's involvement, this fact suggests she may be an employee rather than an independent contractor. Like the claim that Uber drivers are entitled to minimum salary and paid holidays, the fact that Ms. Ariana was not reimbursed for her time off during the holidays may be considered as an infringement of her employment rights.

Evidence that Ms. Ariana may be an employee rather than an independent contractor is bolstered by the case laws of the United Kingdom. To ensure they are fulfilling their duties as an employer in compliance with employment law, AVO should speak with an attorney to determine whether or not Ms Ariana is entitled to any unpaid holiday compensation.

Conclusion

To ensure that they are in full compliance with all applicable employment laws, AVO should speak with a lawyer. It seems that Ms. Ariana may be an employee entitled to holiday pay, based on the results of the research into her employment status and the applicable case statutes. The proper classification of AVO's employees is crucial to avoiding legal liability for things like unpaid vacation and other employment protections. 

Bibliography

Primary sources

UK Cases

Grainger plc v Nicholson [2010] IRLR 4
Essop and Others v. Home Office (UK Border Agency) [2017] IRLR 986
City of York Council v. Grosset (2018] ICR 629
Khan v. G4S Cash Solutions (UK) Ltd. [2018] IRLR 80
Lee v. Ashers Baking Company Ltd [2018] UKSC 49
Chondol v. Liverpool City Council [2018] EWCA Civ 474
Pimlico Plumbers Ltd and Mullins v Smith [2018] UKSC 29.
Autoclenz Ltd v Belcher and Others [2011] UKSC 41.
Aslam and Others v Uber BV and Others [2018] EWCA Civ 2748.

UK Primary Legislation

Working Time Regulations 1998, SI 1998/1833
Equality Act 2010 (c 15).
Employment Rights Act 1996, s 39(2)(c)
Employment Rights Act 1996, s 4
Employment Rights Act 1996, s 136
Secondary sources

Book

Smith, I., Baker, A. and Warnock, O., Smith and Wood's Employment Law (Oxford University Press 2017).