Fatama has worked as a machinist for the company for three years and has always appreciated being allowed to drudge through her job, which entails machining cushion seams. The legal issue raised by the aforementioned circumstances is whether Fatima is required to use new equipment.
There is a legal connection between the employee and the employer when there is a contract of employment. The significance will depend on whether Fatama is an employee. Is using modern tools detrimental to Fatama? A clause in a contract that revokes rights derived from another contract is not binding on the party who entered it. The use of new equipment is not part of the contract. The law that governs the employers and employees in relations to equipment is succinctly provided for in The Provision and Use of Work Equipment Regulations of 1998. The Regulations provide that the requirements imposed by these regulations on an employer with regards to work equipment shall apply to such equipment provided for use or utilized by an employee of his work. Furthermore, the Regulations give an extensive application of these regulations to include not only the employer but also a person at work who uses or manages or supervises the use of work equipment. Just like it was held in the case of Kelly v GE Healthcare Ltd Similarly, where that individual has control as to the way in which work equipment is used at work, then the regulations shall equally apply to him.
APLLICATION
From the preceding; it is well-established that the Regulations would apply on both Fatima’s employer and Graham being in control of the use of equipment at work. Therefore, to determine the conduct of both Graham and Fatama with relation to the introduction of new working equipment; the provisions of the regulations ought to be considered. Regulation 4 of the Provision and Use of Work Equipment Regulations makes provisions for the general principle on the suitability of work equipment. Specifically, the Regulation states that in selecting work equipment, an employer shall have regards to among others any additional risk posed by the use of the work equipment. The introduction of new equipment by Graham to Fatama, equipment of which she lacks adequate training will certainly expose Fatama to potential health hazards.
Rightly so, the Regulations provides that the employer shall ensure that the person designated for the purpose of operating equipment has received training related to any operation of which they have been requested or required to conduct. Accordingly, by Graham offer. The Regulation sets out clearly the duty of the employer as regards training of the employee. The said section states that each and every employer shall make sure that all individuals that utilize work equipment have received adequate training for purposes of safety and health, including training in the methods to avert potential risks.
By Graham providing and offering to train Fatama on the new equipment, he has fulfilled and competently discharged his obligations as required of him. Therefore, an employee who willfully, persistently and with impunity rejects attempts by the employer to train her is in direct breach of The Provision and Use of Work Equipment Regulations. Candidly so, Fatama's conduct of refusing to be trained cannot be sustained by any law. It is directly repugnant and inconsistent with the duty employers has been given under the law to train employees. More particularly she ought to desist from claiming that she was trained in the manual and as thus cannot take any further training.
Question 1.2 Explain legal situations of Sidney and Sabrina
ISSUE
The legal issue is whether the past criminal records of Sidney and Sabrina affects their right to employment.
LAW
There is no law in place that prohibits discrimination of ex-offenders during employment. However, courts have long recognized and affirmed the inherent injustice that can be occasioned by an overboard exclusion of ex-offenders in opportunities of employment that amounts to discrimination.
Courts use precedence to occasionally strike down unfair treatment and overboard exclusion of ex-offenders in employment. Similarly, courts have little countenance for employers that recklessly employ ex-offenders that put others at an unreasonable risk. In the prior cases, the courts have not held back from finding employers liable under state negligent hiring, supervision and retention laws.
Despite being recognized as one of the most marginalized group of people in the society, ex-offenders are not taken into consideration as a suspect class for equal protection and as thus do not qualify for heightened scrutiny when subjected to discrimination. Consequently, the action of barring Sidney and Sabrina from employment is only required to rationally relate to a legitimate employment purpose to survive a claim of equal protection.
APPLICATION
The House of Lords first tackled this issue in Haley v London Electricity Board (1965) AC 778 (HL), the respondent in this case challenged a legislation that prohibited the practice of medicine after a felony conviction. The court held that it is certain that commission crime has some relevance to the question of character. Without prejudicing the possibility of reformation; the Court was of the opinion that defendant was entitled to prescribe a rule of general application grounded upon a state of things.
In the case of Bellinger v Bellinger, the Court pronounced itself by holding that the plaintiff's past disqualified him from validly practicing law. Furthermore, the Court advised that an employer can require standards such as good moral character before it employs a potential applicant. However, as was held in Edwards v Skyways where an employer goes forth to enter into an employment agreement, there is a presumption that the agreement is legally binding.
However, such disqualifications cannot be absolute. Accurately so, in the case of Grant v Australian Knitting Mills court held that any disqualification must be founded on the assessment that there exists evidence to justify that the applicant was not fit for employment. Therefore, in this particular scenario Sidney and Sabrina may have no recourse; if Graham can specifically tender a rational explanation for the fact that the past conduct of the two renders them unfit for employment.
Finally, it is important to note that in the case of HM Inspector of Health & Safety v Chevron North Sea Ltd The court concluded that an employer could, where new evidence is now available to terminate the employment of his employee if the new evidence reveals reasonable grounds to believe that the employee committed a crime. Sabrina, therefore, cannot claim unfair dismissal as the commission of crimes does not have a statutory period of limitation. . In the case of Drake v Ipsos Mori UK Ltdit was held that where there is no obligation on the part of employer to offer work and on the part of another to accept work, there can never be a claim of unfair dismissal, notably, though in this case, Sabrina was inactive employment and such affirmations will fail.
Question 2.0 Consider the prospects of any claim that may be brought under the Equality Act 2010 regarding Joseph and the two women whose applications for employment were turned down.
ISSUE
The issue is whether the turning down of Joseph and the two ladies is in breach of the Equality Act 2010.
LAW
The Equality Act 2010 lays down succinct characteristics that are protected from any form of discrimination. Part and parcel of those characteristics entail sex and sexual orientation. From the preceding it’s crystal clear that the letter and spirit of the Act are premised on the foundation of equal opportunities regardless of one's sex or sexual orientation. Sex has been broadly defined by the Act as a reference to a person who has a protected characteristic is a reference to a man or a woman. After that the Act defines sexual orientation as an individual’s orientation towards a person of the same sex, opposite sex or either sex.
Courts have also been firm in restating the above principles of equity in their judgments. In the case of P v S Cornwall County Council, P was dismissed by a council after informing it of the desire to undertake a gender reassignment surgery. P was dismissed by the council and filed an action against the council because the said dismissal amounted to sex discrimination. In the case of Watkins-Singh v Aberdare Girls High School the High Court reaffirmed the rule against discrimination by finding that the school head teacher had exhibited a reckless lack of understanding of the need for equality of respect for those of the opposite sex and of different religious and ethnic belief.
APPLICATION
The facts in this case involving Joseph and the two women falls squarely under this protection. It is not in dispute that Joseph was denied a job opportunity because of his sexual orientation. Likewise, the two women were turned down simply because of their sex. To consider the prospects of any claim that can be instituted by the three; the above-referenced sections need to be read together with Section 39 of The Equality Act that substantively addresses matters of employees and applicants. Particularly the Act provides that an employer must not discriminate nor victimize against a person that is afforded protection:
In the arrangement the employer makes for deciding whom to offer employment;
As to the terms of which the employer offers the said employment; and
By not offering the protected applicant an employment.
The law is primarily designed to protect bisexual, gay and lesbian applicants against direct or indirect sexual orientation discrimination. In the case of English v Thomas Sanderson Blinds Limited Mr English made a complaint to the tribunal that for some years, his employers and colleagues had subjected him to a “banter” on the basis that he was homosexual. Even though he accepted that they never genuinely believed he was homosexual, he argued that the banter amounted to harassment contrary to Regulation 5 of the Employment Equality.
A preliminary issue for determination was whether the sexual orientation regulations protected Mr English. The Court of Appeal held that the unruly homophobic banter was by sexual orientation regardless of if the tormentors are aware of his true sexuality or the victim is gay. The court reaffirmed the position in the Equality Act that ‘Gender reassignment’ is a separate guarded characteristic under the Equality Act. Indeed in the case of JM v United Kingdom, the court reinforced the illegality of discriminating against an individual on the basis of their sexual orientation. Liberty’s client, JM, was asked to pay more in child support due to the fact that she was in a lesbian relationship that was not recognized by law. The Court of Human Rights overturned the decision of the House of Lords and found that treating JM differently on basis of her sexuality was discriminatory.
Likewise, in the case of Browne v Central Manchester University NHS Foundation Trust a former NHS employee was awarded 933,155 euros in compensation for the uncouth racial discrimination and slander in the year 2011 in his employment at Central Manchester University NHS Foundation. Courts have been and are pro-equality and are willing to instantly award damages to any individual that is racially and sexually discriminated on the grounds of his or her sexual orientation. In the case Bunge SA v Kyla Shipping Company Ltd that established the modern law of frustration, the court ruled that when determining whether to award damages, the events ought to be strictly not too far from the alleged frustrating event.
In this case, the senior management expressly informed Graham that both the two women and Joseph were to be denied the employment for the sole reason that their sex and sexual orientation respectively could upset the macho-dynamics of the group. The rights and entitlements laid out by The Equality Act are absolute and have no qualifications. No, they are not any, and as such, it can be said with high certainty that the actions of the senior management were in breach of The Equality Act and hence illegal.
In the largest award the Tribunal as ever granted case of Michalak v The Mid Yorkshire Hospitals NHS Trust, a former National Health Service (NHS) doctor that had been discriminated by her sex was awarded up to a tune of 4.5 million euros. Employers should not discriminate their employees on the basis of sex, race, or even religion.
Bibliography
Cases
Bellinger v Bellinger (2003) UKHL 21
Browne v Central Manchester University NHS Foundation Trust
Bunge SA v Kyla Shipping Company Ltd [2013] 3 All ER 1006
Chandler v Webster (1904) 1 KB 493
Crisp v Apple Retail (UK) Ltd ET/1500258/11
Drake v Ipsos Mori UK Ltd (2012) UKEAT/0604/11
Edwards v Skyways (1964) 1 WLR 349 (CA)
Kelly v. GE Healthcare Ltd, 2009 E.W.H.C. 181, 2009 R.P.C. 12 (2009)
Haley v London Electricity Board (1965) AC 778 (HL),
JM v United Kingdom(2011) 53 EHRR6
Grant v. Australian Knitting Mills Limited, 154 L.T. Rep. 18 (1936).
HM Inspector of Health & Safety v Chevron North Sea Ltd (1986) QB 240
English v. Thomas Sanderson Blinds Ltd, 2008 E.W.C.A. Civ 1421, 2009 I.R.L.R. 206, 2009
I.C.R. 543 (2008)
Browne v Central Manchester University NHS Foundation Trust
Michalak v The Mid Yorkshire Hospitals NHS Trust
Watkins-Singh v Aberdare Girls High School (2008) EWHC 1865
Haddock v. City of New York, 553 N.E.2d 987, 992 (N.Y)
Parker v. Lyons, 757 F.3d 701, 707 (7th Cir. 2014)
Soto-Lopez v. N.Y.C. Civil Serv. Common, 713 F. Supp. 677, 679 (S.D.N.Y. 1989)
Kadrmas v. Dickinson Pub Schs 487 U.S. 450, 457–58 (1988)
Stauffer v. Gearhart, 741 F.3d 574, 587 (5th Cir. 2014)
Legislation United Kingdom Statutes
The Equality Act
The Provision and Use of Work Equipment Regulations 1998
Convention on Human Rights
Unfair Contract Terms Act 1977
Secondary sources
Books
Selwyn, Norman M., and Astra Emir. Selwyn's law of employment Oxford University Press,
USA, (2014)
Treitel, Guenter Heinz. The law of contract Sweet & Maxwell, (2003)
Grant, Beryl. Employment Law: A guide for human resource management. Cengage Learning
EMEA, (2001)
Rogers, Suzy, and Kent D. Kauffman. "Essentials of Business Law." (2012)
Mann, Richard A., and Barry S. Roberts. Essentials of business law and the legal
environment Cengage Learning, (2012)
