Re: Providing legal advice on issues based on discrimination and harassment faced by Harmony Gupta in the workplace
This letter is writing to you to inform that the problem faced by the Client Harmony Gupta resident of UK, is currently facing the discrimination and harassment faced by her in your workplace. It is believed that the rumors were spread about your sexuality and you have been denied an opportunity of promotion due to this harassment and discrimination and the so-called occupational requirement that you do not encounter.
On this note, this is to inform you that the role of a Solicitor is mostly to provide you with advice and decisions on the claims on legal aspects of discrimination, and harassment evaluate the claim to make your case stronger and provide the guidance you need. The guidance will be provided for the process of third-party seeking and the solicitor will see that you are providing just and potential litigation options.
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Identification of Legal issues
Key factors
Harmony Gupta has been working as an Account manager at Elecsmart Ltd for 3 years. Before joining the said company HG had been performing internships in the company for 2 years. The salary structure is basic income and commission earned from selling electronic items. The first discrimination was observed as her colleagues received more incentive than her doing the same job as she is only entitled to a 5% bonus. This and male dominance in the workplace makes her isolated and she reports the harassment but the step management took is ignorance of her. She also submitted a written complaint to the HR department for the allegations of discrimination but the grievance part of the said company settled the matter stating that there is no ground for discrimination allegation.
Analysis Legal issues
Rumors of sexual orientation and discrimination
HG has experienced harassment in her workplace and also faced some unpleasant comments from her co-workers based on the rumors about her sexual orientation. This is a violation of discrimination under the Equality Act 2010. The said company stated to HG that the grounds of this type of discrimination do not stand as she is not a gay or bisexual person. However, the company is ignoring the fact that discrimination based on apparent sexual orientation can be prohibited under the Equality Act 2010.
Failed to offer adjustments based on reasonable arguments
The client has applied for the role of installation technician but was denied that she doesn't match the minimum height requirement. This matter falls under the discrimination under Equality Act 2010.
The male co-workers of the company were paid higher salaries, bonuses and incentives. On inspection, it came to light that the male and female employees are performing the same job and this constitutes discrimination under the act of Equality Act 2010.
Victimization
The client reported that she felt the problems increased after she filed a complaint to the grievance department of the company and these actions fall under the Equality Act 2010.
Breach of Contract
The promotion opportunity of HG has been denied by the management of the company although she is qualified for the promotion. These aspects establish one factor which is discrimination in the workplace and Breach of contract under The Unfair Terms Act 1977.
Unfair Dismissal
HG faces the treatment proved to be adverse and dismissal only for raising the problems and issues about the discrimination she faced in the workplace this is a clear violation of the Employment Rights Act 1997. This act deals with unfair dismissal in the UK.
Rules applicable for the legal issues
The rules and acts that proved to be important in your case are mentioned below. For better understanding, I provide a table to understand on which ground you can get remedies for your issue. First, you need to know about your rights. This is one of the main purposes of this letter to inform you of the rules and regulations you need to know.
The Equality Act 2010
This particular act prevents and protects people from the discrimination they could have faced in anywhere in the UK. Sexual orientation, age, sex, race, disability, religion or belief is no bar for this act. The application of this act could be done on various aspects of life such as education, life work, services, and any public or private premises. Through this act, the Govt of the UK and the Judiciary system of the UK prohibit victimization, harassment and other forms of outlawed activity.
The Unfair Contract Term Act 1997
Through this act the limitations are to be extended on any of the parties which are avoiding the liability or imposing unreasonable terms or conditions to the other party. In short, one cannot impose irrational aspects on another party who is bound by the contract. It covers different types of contracts, like office holding, sale purchase, hire, partnership, employment services, qualifications and organizations of the trade. At first, this Acts as the “reasonableness” test for determining the validity of the contract that has been set up between two or more parties.
Employment Rights Act 1996
This act creates the rights and responsibilities of employers and employees in different factors of employment conditions. It could be contracts, wages, dismissal, leave, maternity, parental, termination, hours of flexibility etc. It also provided remedies and enforcement rights through the tribunals and courts of employment. With the help of this particular legislation, the government of the United Kingdom wanted to reduce overall any type of employee harassment and abuse cases which was increasing throughout the entire UK. It also provides a more flexible version of the existing labour laws present in the UK at that time.
Employment Relations Act 1999
The “Employment Relations Act 1999” is associated with the development of employee relations with trade unions and other organisations. This particular law was developed by the government of the United Kingdom to resolve cases of employee abuse and harassment appropriately. It can be implemented in business companies which contain more than 20 working employees. Subject 2 of this specific act stated the relationship of the employee with the other members of a particular company.
This particular act was introduced by the government of the United Kingdom to resolve various cases of domestic and workplace abuse accordingly because human abuse and harassment cases were increasing throughout the entire UK by an alarming number. It was analyzed that this particular act contains various articles which provide information about the basic human rights of every citizen of the UK whether he or she possesses a foreign nationality in the past or not. This specific act stated that the citizens of the UK regardless of any age group or race should be treated equally and with proper dignity and respect. Also, this particular act provides various guidelines which are related to the code of conduct within a workplace.
Application of laws and case studies for issues
Rumors of discrimination and sexual orientation
“Under section 12 of Equality Act, 2010”, it is prohibited to showcase any kind or type of discrimination in the workplace under the ground of orientation of sexual aspects. It included the perceived orientation also. As per the act, HG is not Gay and bisexual hence she can claim justification if she feels discrimination in the office. This type of sexual orientation attracts the “Section 26 of Equality Act and Section 13 of Equality Act 2010”. This action also falls under harassment which can be described as the unwanted conduction made to any person that violates any person’s dignity and accuses the dignity and intimidation creation in hostile situations, humiliation and degrading. The offensive environment attracts “Section 13 of Equality Act 2010”. You can get remedies referring to the case law of “English VS Thomas Sanderson Blinds Ltd (2008) EWCA Civ 1421”. This case law declared that the heterosexual man is discriminated against by homophobic colleagues and this could claim harassment against the gender of orientation in a sexual nature.
Failing to offer reasonable arguments
The Equality Act, 2010 section 19 prohibits the discrimination upon, the ground of disability where a person is physically and mentally abused by the other people causing the long term and substantial adverse effects on the very person’s normal day to daily activities. The act is basically imposed on the duty on employers to make rational anmd sensible adjustments for disabled persons. This action also refers to Section 20 of Equality Act. Modification of the equipment’s, premises, policies and procedures are the measure that employer could hold by the employer to put unavoidable conditions for disable person. HG can get help from Section 19 of Equality act, 2010 and you can argue that the ability to perform of the job should be the real qualification not the height which seems unrealistic and unreasonable. When you asked your company the company failed to provide any reasonable arguments hence it attracts the very act. The case law of “Archifiled VS Fife Council (2004) UKHL 32” referred that the House of Lord should held a reasonable argument before stopping any disable person to get higher paid post without any interview of competitiveness.
Putting discrimination based on sex
“The section 13 of Equality Act 2010” is enforced here as this act prohibits the discrimination on the basis of the SEX. This include the payment of men and women should be equal unless they are not having the same type or kind of job. The equal work equal pay is to be enforced by the employer at every orgization. You can claim that you are doing the equal work compared to your male colleagues and you are getting less in return is violation of the “Section 23 of Equality Act” which deals with Equal pay. This is the form of direct discrimination allows judiciary to impose violation of “section 26 of Equality Act, 2010”. It is also the violation of “Human Rights act 1998.” A judgment of the case law of Bury Metropolitan Borough Council VS Hamilton (2011) EWCA Civ 13 cab be referred here as the court of Appeal passed the judgement of no female employee should not pay less on the grounds of Equal work and violation of that could cause sex discrimination.
Victimization
“Section 27 of Equality Act 2010” and “Human Rights act 1998” imposed rules and regulation for stopping the victimzation any place to any person. This victimization is treating someone brutally or very fair means. Both acts protect the interest of the person who is a whistleblower or any person who puts the complaint to a grievance for the discrimination case. You can claim that the real discrimination started with you after you filed a complaint and resulted the further discrimination, harassment and denial of promotion of any kind. This attracts Section 27 of the Equality Act 2010 where it is states this type of action should be totally barred and put the person at the stage of disadvantage. The case law of “St Helens Metropolitan Borough Council VS Derbyshire (2007) UKHL 16” where the House of Lords decided that the victimized party was a female employee and victimized by the local authority. The female employee complained about the equal pay claims and the complaint letter caused jeopardizing the services of the employee. You can claim on the basis and you will get the remedies for the victimization that has been done to you with the help of the Equality Act 2010 and Human Rights Act 1998
Breach of Contract
The Unfair Contract Terms Act 1997 is applicable in your case. Breach of the contract is the legally binding agreement between two parties, in this case, the employer and the employee. It is created by the conditions and terms of duties, responsibilities rights and benefits. Section 95 of the Employment Rights Act 1996 is applicable here. This relationship is based on belief and evidence. The breach of contract happens if either party fails to perform their job or the obligation. Under this “Section 3 the Unfair Contract Terms Act 1997” you can claim that the company has breached the contract through the denial of the opportunity of promotion and you are qualified for the job. That resulted in the repudiatory breach, it is a breach that is serious as the breach can cause the termination of the contract and you can claim for the damage due to the termination threat you get from your employer. The case law that supports your claims is the Malik VS Bank of Credit and Commerce International SA (1997) UKHL 23, Where it was the judgment passed by the House of Lords that the employer has breached the contract through implied terms of trust and confidence through a business of corruption and dishonesty and the employees are forced to breach the contract and claim the damage for the loss due to their termination and prospects of future employment. As per Section 1 of the Employment Rights act 1996 you can claim for the continuity of the term of the employment.
Unfair Dismissal
Section 94 Employment Rights Act 1996, deals with the protection of employees from getting unfair dismissal or termination. The act provided the rights to employees to bring the claim in sight of an employment tribunal. The employment tribunal then evaluates if they were dismissed in an unfair nature or not. The reason for the dismissal should be provided by the employer. If it is found they are failed to provide reasonable reason then Section 98, Employment Rights Act 1996 can be imposed. If you can claim that the unfair practices if dismissal has been happened to you which is done to you in certain, you can get help from the mentioned act. The reason of the dismissal was not reasonable one and the misconduct and termination and breach of duty to be statutory. You can also claim that the company has not been followed by the ACAS Code of Practice on disciplinary and Grievance procedures. It is noticed that the company of yours doesn’t follow any acts and rules. The case law of Polkey VS AE Dayton services Ltd (1987) UKHL 8 provided the judgement by the House of Lords that the dismissal could be unfair if the employer is mainly failed to follow the procedures proved to be fair [Refer to appendix 1].
Recommendation and Conclusion
Analysing your situation and entire case properly, I have identified that you should first proceed with a proper goal and determination to get justice for your case in the courtroom. You should properly identify what are your basic demands in this particular case scenario which you wanted to achieve. However, the acts and laws which I have mentioned throughout this entire letter are associated with your case and contain various risks also such as redundancy pay.
Throughout this entire letter, I have discussed various acts and legislations which are implemented by the UK government to resolve the cases of employee abuse and harassment properly. I think that all these laws are vital for achieving favorable outcomes in your case. If you need any further help you can contact me by letter or organizing an appointment with me.
Question 2: Reflection (Personal Development Planning)
Professional goals and aspiration
The objective of my professional is to build a career being successful barrister. I aim to become the member of the Bar and specializing in civil and employment laws. Through the hard work and self-improvement continuously and after adhering to ethical principle it is aspire to become the Queen’s Council. The motivation is needed through determination through the justice and reliable guidance from the tutors.
Development of knowledge in Business and Employment law
My understanding of business law and employment law has been increased through the study i make in W240. It broadens my mind and knowledge about various legal and principle concepts related to operations in business and relationship in employment. I have gained development in key factor areas such as contract law, discrimination law, employment law, equality law. The employments rights Act 1996 and Equality Act 2010 has provided me solid foundations for comprehending the issues relating legal aspects of business and employment. After evaluating a get to know that now i am capable of understanding and potential issues like dismissal, termination, discrimination, contractual breach from real life caste study. Exploring studies and case laws helped me to apply my knowledge about theoretical aspects into the real life situations.
Development of opportunity through Skill Improvement
The skills it feel has improved in myself is believe to be engaging the module into the analytical thinking. The complex legal issues and evaluation of the implication of rather different principles of legal aspects are based on the business decisions and employment practices has improved. This improvement is based on my ability to assess the situations on critical legal perspectives. The research skills has been improved by locating and analysing the legal sources proved to be relevant. The writing skill also put on test as this writing a letter to a client and this will help me for future aspirations for better career.
Action plans through the skills improvement
The recognizable fact that the further development of the writing skills need to be improved. The conveying of the complex legal aspects have to be clear and concise in nature. The aim should be the enhancement of the thinking of critical aspects of legal and judiciary system. The legal system is basically psychology of human nature and putting it through legal factors. The more the psychology comprehended the better professional one can be. The development of the habit of the continuous learning is the skill i need to focus on. Through this reflective report the self-evaluation is done and the feedbacks from tutor will definitely help to identification of areas of improvement. The last thing needed to build up the thinking of identification of the procedural rules and limitation of time. The key areas must be address properly to perform the advance level coursework in business law.
References
Journals
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