Fatima - Case Study Essay

For more than three years, Fatima has worked for Softy Furnishing Ltd (SF). Fatima has refused to use new tools for the job and has rejected training on their use that was offered at SF. The technology is quicker and designed to increase output. The question at hand is whether Fatima is required to use the new tools.

The situation with Fatima concerns implied contract conditions. According to the legislation, an employment contract must contain both express and implied terms. The employee’s cooperation with his employer is one of the implied conditions. In the case of Cresswell v Board of Inland Revenue [1984] IRC 508, an employee declined to use computerised record systems because he preferred the old method of filling. He moved to court to declare that the employer’s action of introducing new machines was a breach of his employment contract. The court was of the contrary opinion. It stated that provided that the equipment is for the fit purpose and proper training was given, then the employer was not in breach of his contractual obligations to the employees.

The Provision and Use of Work Equipment Regulations of 1998 addresses the issue of change being within the scope of the job requirements and need of proper training. The Provision and Use of Work Equipment Regulations aim at minimizing the risk of injury or death of employees because of using existing, new or foreign equipment at the workplace. As provided for by the Regulations, employers have a duty to ensure that their employees are well equipped and well trained to operate any equipment or machinery used in the course of their duty. This responsibility includes training of the employees.

Regulation 4 also requires that any device introduced in a place of work be suitable for the intended use. Regulation 9 provides for training. It states that every employer has a duty to make sure that all employees have been adequately trained to use the equipment at work to ensure that they are used safely and in a healthy manner.

The Health and Safety at Work etc Act stipulates that training is a fundamental duty for employees. In the case of Linda Mary Gillie v Scottish Borders Council [2013] CSOH 76, 17/5/2013, the court was of the opinion that employers should ensure that their personnel are adequately equipped and skilled to operate machinery at work.

Application and conclusion

The machines introduced by the company are faster than the machines Fatima is used to and the machines introduced are suitable for making seams on cushions. Fatima owes her employer a duty to cooperate. One of the implied terms of an employment contract requires an employee not to impede the employer’s business as stated in Cresswell v Board of Inland Revenue [1984] IRC 508.The company needs the new equipment to boost production and profits. This means that Fatima’s refusal is in breach of her employment contract.

However, Fatima’s employer is under obligation to train its employees to use the equipment. If the employer can prove that the new equipment complies with the requirements of the Health and Safety at Work Act of 1974 and the Provision and Use of Work Equipment Regulations, then they can ask Fatima to resign or lay her off. This is because the company has ensured that the machines are suitable for the work and has offered to train Fatima thus they meet the requirements of the law on health and safety.

Sidney

Issue and law

Sidney has been denied employment at Softy Furnishing Ltd (SF) because she was sentenced to six years in prison for drug smuggling and had served 4 years. The matter in issue in this scenario is the legal situation regarding Sydney.

The general rule is that a potential employer cannot refuse to employ a person based only on the fact that the person has a criminal record provided the person’s conviction or causation is spent. This rule is provided for by Sections 1 and 2 of the Rehabilitation of Offenders Act of 1974. In the case of R (T) v Secretary of State of the Home Department 2014 UKSC 35, the court held that the case alters the common-law principle of full disclosure to employees through introducing exceptions to disclosure of criminal records by ex-convicts regarding spent convictions. Most convictions or causations are ‘spent’ after a prescribed period of time. ‘Spent’ convictions are usually sentences of less than 4 years in prison. Once a person is sentenced to imprisonment, they get a rehabilitation period based on the nature of their crime and how serious the punishment was.

For instance, in England, six months in prison attract a two years’ rehabilitation period while four years attract a seven years’ custodial sentence. A custodial sentence of more than four years is never ‘spent’. Section 139 of the Legal Aid, Sentencing and Punishment of Offenders Act of 2012 provides for the recent lesser rehabilitation periods as compared to those in the Rehabilitation of Offenders Act. Consequently, ex-convicts who got sentenced since June 2013 have shorter rehabilitation periods attached to their sentences.

If a conviction is spent, then the person who served the sentence is protected and is not under any obligation to disclose his or her criminal record when applying for a job, insurance cover or the likes. For ex-offenders whose custodial sentences can never be spent, they are not protected by the Act and are required to disclose that they are ex-offenders if asked by an employer.

The exception to this rule is scenarios that are exempt from the Rehabilitation of Offenders Act. These exceptions are provided for under section 5(1) of the Rehabilitation of Offenders Act. Another exception is when an ex-offender is in a different country. The nondisclosure of spent convictions rule only applies in the United Kingdom. A third exception is provided for under section 143(2) of the Criminal Justice Act as read together with section 7 (2)(a) which allows a court of law to use spent convictions as evidence in a criminal proceeding provided that the evidence is necessary for determining the issues faced by the court or in determining the seriousness of the crime. It is unlawful for an employer to deny an ex-convict employment due to a spent conviction. In the case of a conviction that has not or cannot be spent, the ex-convict does not enjoy the protection of the Rehabilitation of Offenders Act.

Application and Conclusion

In this scenario, Sidney was sentenced to 6 years in prison but only served four years. In the instance that his rehabilitation period begins after four years, then his rehabilitation period was seven years which have been spent since he has applied for the job fifteen years later. This means that it is illegal for Softy Furnishing Ltd to refuse to hire him based on his criminal record. However, if his sentence was the full six years, such a sentence cannot be spent and Sidney would not be protected by the Rehabilitation of offenders Act. Ex- convicts who are in this category can be denied jobs despite being fully qualified to perform them.

Sabrina

Issue and law

Sabrina is also an ex-convict who has been working at Softy Furnishing Ltd for six years. The matter in issue is whether she was under any obligation to disclose her criminal record to the employer at the time she was hired. Sabrina’s case falls under disclosure of criminal records to employers.

Application and law

Sabrina was sentenced to nine weeks in prison for possession of cannabis. Her rehabilitation period was two years hence she has spent her rehabilitation period by the time she applied for a job at the company.

Once an ex-convict has spent their rehabilitation period, they are not under any obligation to disclose such information to potential employees or while applying for insurance. This is because they are protected by the Rehabilitation of Offenders Act. The Act allows employers to ask potential employees of their criminal records if the spent conviction falls under the exceptions provided for under section 5(1) of the Rehabilitation of Offenders Act. Dismissing Sabrina based on her criminal record will amount to unfair dismissal and Sabrina can sue for damages and or other compensation the court may deem fit.

Since Sabrina’s conviction was spent at the time of conviction, she was not under obligation to disclose her criminal record unless she voluntarily did so. The company is also not allowed to perform a Disclosure and Barring Service check unless the nature of business in the organization falls under the exceptions stated under section 5 of the Act. Disclosure and Barring Service check are a background check of some sort which gives a person’s criminal record.

Conclusion

Failure to disclose an unspent criminal record or spent criminal’s records provided for by section 5 amounts to professional misconduct. In the case of R (T) v Secretary of State of the Home Department 2014 UKSC 35, the Supreme Court was faced with issues regarding the mechanisms governing disclosure and barring service checks and if an employee is obliged to disclose his or her criminal record(s) to an employer. The respondent claimed that disclosure of his criminal records was in breach of his right to private life as provided for under article 8 of the European Convention on Human Rights and was ultra vires of the Rehabilitation of Offenders Act.

In this case, Sabrina is not a subject of a Disclosure and Barring Service check or involuntary disclosure. She was, therefore, under no obligation to disclose her criminal record because it has already been spent. Furthermore, the nature of work at the company does not fall under the excepted employments.

Question Two:

The two women

Issue and law

Senior Management at Softy Furnishing Ltd made a decision to employ women only and ended up denying two women job opportunities based on their gender. The matter in issue is whether the senior management is guilty of gender discrimination at the workplace.

In the United Kingdom, there is a body of laws which protect citizens against discrimination and other related injustices in the workplace.

The Labour laws, particularly Chapter 1 of the Equality Act aim at ensuring there is no unlawful prejudice against people in the protected characteristics. Section 4 lists the protected characteristics as sexual orientation, age, race, belief, gender, disability, marriage or civil partnership. In this scenario, the two women were treated differently because they are female. Therefore, they were denied jobs that they qualified for because they are not of a particular gender.

This kind of treatment is the ordinary direct discrimination based on sex or gender as provided for by section 9 of the Equality Act. Section 39(1) (c) of the Equality Act prohibits employers from discriminating against an employee in the arrangement based on the characteristics in section 4 read together with section 11 by denying them employment. In the case of Talbot v Costain Oil, Gas &Processing Ltd & OrsUKEAT/0283/16/LA, a claim of sex discrimination was tried unfavorably and an appeal was allowed in favor of the claimant.

Application and conclusion

The two women can institute claims of discrimination to an employment tribunal.

For a claim of discrimination to suffice, a victim has to show the court three things, first, he or she has to show which protected characteristic is involved. Second, the claimant has to show the tribunal the type of discrimination under the law and how it was violated. The two women were denied employment because of their gender and therefore belong to the protected characteristic of sex which is listed in section 4 and further explained in section 11 of the Equality Act. Second, the type of discrimination was direct and in violation of section 39 of the Employment Act.

Joseph

Issue and law

Joseph was denied a job because he is a homosexual and the company claims that hiring him will upset the macho dynamics of the group. The matter in issue is whether he has been discriminated against. It is my opinion that joseph was discriminated against based on his sexual orientation.

Section 4 of the Equality Act lists sexual orientation as one of the protected characteristics. Section 12 provides for sexual orientation. Section 12 (1) provides that sexual orientation is their orientation towards people of similar gender, opposite gender of either gender. Section 39 provides that an employer is prohibited from refusing to employ or treating an employee differently because they belong to the protected class stated in chapter one, in this case, section 12.

In the case of Grant v South-West Trains Ltd (1998), a female claimant stated that her employer discriminated against her because her female partner could not benefit from travel arrangements which limited beneficiaries to spouses and dependants. As a result, the Equal Treatment Framework Directive ensured that sexual orientation is protected by law under section 12 of the Equity Act.

In another case of English v Sanderson Blinds Ltd [2008] EWCA Civ 1421, a man was teased at his workplace because he was a homosexual. His employer had asked the claimant’s fellow employees to make jokes about his sexual orientation. He sued his employer for discrimination based on sexual orientation. His claim was successful.

Similarly, in the case of Showboat Entertainment Centre v Owens [1984] CR 65 (EAT), an employee made a successful claim against his employer for discrimination based on his sexual orientation. In conclusion, joseph was discriminated upon because he is gay. This means he was discriminated against based on his sexual orientation contrary to section 12 as read together with section 39 of the Equality Act. Therefore, Joseph can seek redress at an employment tribunal.

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