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PH311 Employee Law and Relations : Fairness and Trust in the Workplace

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Case Study

Sparkling Cleaning Solutions Ltd is a contract cleaning company which has enjoyed fast growth over recent years. The company was founded in 2009 by two sisters called Jackie and Joan Sparkle. They started with three clients and a team of eleven cleaning staff. The company has grown organically since then, steadily winning new contracts, retaining existing ones and employing a few more people each month. By 2011 Sparkling employed several hundred cleaners and a team of 35 managers, sales staff and administrators in their head office. In the Spring Jackie and Joan decided to retire, selling their
company to an entrepreneur called David Hose-Cuff.
David has plans to grow the company at a much faster rate by acquiring smaller companies and merging them with Sparkling while also continuing the strategy of organic expansion. Since his arrival David has been impressed with most aspects of the Sparkling operation, but he is not happy with the way the tenstrong sales team operates. He thinks that the operation lacks coherence, that the staff do not support one another as much as they could and that there is insufficient drive, enthusiasm and hunger to attract new business. He has therefore fired the existing Sales Director and hired a more dynamic figure in the form of Frances Overshot. She has extensive sales experience and has been
highly successful in previous roles, but has not managed a team before and is unfamiliar with the contract cleaning industry.

Soon after starting Frances decided that team-building must be her first priority, and to that end she and David Hose-Cuff agreed that the sales team should all be taken away for three days to stay at a country hotel where they will undertake a variety of outdoor team-building tasks designed to help them work better together and raise their level of enthusiasm. The trip will require staff to stay away from home for two nights and to engage in a variety of challenges including abseiling, orienteering and building a raft to get their group from one side of a river to the other. Frances's partner, a former RAF officer, will be employed to run the training event.

When this plan was announced, most staff in the Sparkling sales team responded apathetically. Frances Overshot stated that everyone must attend, that no excuses would be accepted but that overtime would be paid to all to cover any additional hours that staff spent over and above their usual working
day on the programme or travelling to and from the location. While some looked forward to the course, others agreed to come because they felt they had no alternative. A third group, comprising four staff came up with different reasons for not attending and asked Frances and David to be excused. The reasons given were as follows:

Two female members of the sales team said that they could not attend because they were single parents with responsibility for young children. Their childcare responsibilities meant that they could not spend time away from home at such short notice.

A senior salesman called Richard Buff asked to be excused from attending on the grounds that his ex-girlfriend was due to give birth totheir baby that week and that he was intending to take a period of
paternity leave at the time of the training course.
A recent recruit called Yasmin Fogger stated that she was not prepared to attend because last time she went on a similar programme some years ago, it triggered a relapse of a long-term mental condition and had led to a period of stress-induced absence lasting eight months.
These requests not to attend the outdoor team development event were turned down by Fran and David. They took the view that everyone's attendance was vital for the future success of the sales team and that if they were to assent to one request then they would have to agree to all, and this would undermine the whole event.
Two days before the planned start of the outdoor development event Frances receives a formal letter signed by Richard Buff, Yasmin Fogger and the two women with childcare issues. This states that they are all withdrawing, with immediate effect, from the opt-out agreements they signed on appointment
allowing the company to require them to work in excess of 48 hours a week. The letter states that in requiring them to attend the three-day outdoor development training course, later that week, their total working hours will exceed 48. For this reason they are not prepared to attend. Fran and David decide to reject this demand too. They reply stating that all four staff must attend the outdoor programme and will be subject to disciplinary proceedings if they do not.
The training course goes ahead as planned. All staff attend and find, to their surprise, that they enjoy the experience. It seems that the aim of building the team and its enthusiasm is being met. However, on the final afternoon an accident occurs which has the opposite effect. During the final orienteering exercise Yasmin Fogger, while running down a steep slope, trips over and falls several feet. She sustains serious head injuries and a broken arm. As a result she is now in hospital and is not expected to be able to return to work for several months.

1. Using appropriate case laws, critically discuss the possible legal claims that the Sparkling Cleaning Solutions could find itself defending. 

2. You have been approached as the HR Manager to provide advice to  the new owner David Hose Cuff and his senior manager, Sales Director Frances Overshot. Critically analyse the strengths and weaknesses of each claim identified above. 

3. With consideration of the circumstances of this case, critically discuss the ways in which Sparkling Cleaning Solutions could attempts avoid potential workplace conflicts by managing its employee relations better. In your discussion, propose recommendations on which the company could use to promote good 
4 employee relations. You should justify your answer with examples of good practice from advisory or professional bodies such as ACAS and CIPD and/or from relevant case law. 

Answer:

Introduction:


The lawful connection or association between the employers and the employees creates the employment relationship. An employment relationship exists when the individual performs some work or service, as per the conditions laid down, in exchange for remuneration. Through this very relationship, the rights and obligations between the employer and employee are formulated (Rose, 2008). These further create the implied term of trust and confidence, for the employee to carry out his work in a proper manner, and for the employer to provide safe working environment and discharge the remuneration on time (Moffat, 2011). These are the terms established under the implied and psychological contract created upon the formulation of employment relationship. So, the employment relationship creates an implied contract between the employer and the employee, which sets out the rights and responsibilities of each of the parties (Bingham, 2016).

Possible Legal Claims

In order to improve the help the sales team in working together and raising the level of enthusiasm, a three day team building trip was recently planned by Sparkling Cleaning Solutions Ltd’s Sales Director, Frances Overshot. However, some of the individuals applied for being excused from attending the same. This has led to inception of certain problems or issues, as per the Employment Law in UK and the same has been summarized below:

Family friendly – Parental Leave: The employees in UK have certain family friendly rights, which include flexible working, time off for domestic emergencies and parental leave for the children less than five years of age. This requirement is provided under regulation 15 of the Maternity and Parental Leave etc. Regulations 1999 (UK Legislation, 2017a). In case the individual is denied the paternal leave, the employee can make an application to the employment tribunal. Even the S.I. No. 231/2000 -- European Communities (Parental Leave) Regulations, 2000 provide that the natural parent of the child, who is also an employee, is entitled to parental leave (ISB, 2017).

Furthermore, Section 47C of the Employment Rights Act 1996, also requires that the leave for family and domestic reasons is provided to the individuals. An earlier notice is required for this leave. Section 57A of the 1996 Act provides that emergency leave for family reasons can be taken (UK Legislation, 2017b). In Cortest Limited v O’Toole EAT/0470/07, the judges were satisfied that emergency leave could be grated for a shorter period and if a longer period is required, the same can be granted under the parental leave (Swarb, 2015).

48 hours: Regulation 4 of the Working Time Regulations 1998 provides that the average working hours for a seven day week cannot exceed forty-eight hours (UK Legislation, 2017c). In counting the working week, certain elements have to be included and these include paid overtime, working lunches, and job-related training. The individuals have the option of opting out of this regulation, by signing an “opt out” form. Though, the individuals can cancel the opt-out agreement whenever they want and even in such conditions, where the same is included in the employment contract (UK Government, 2017a).

The EU’s Council Directive 93/104/EC also provides that the working hours per week cannot exceed 48 hours (EUR Lex, 2017). In Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (2005) C-397/01-403/01, it was held that a collective agreement could not be used to opt out of 48 hours a week. And so, individual opt out agreements were required (Swarb, 2016a).

Paternity leave: Regulation 4 of the Paternity and Adoption Leave Regulations 2002 makes the father of the child, eligible for paternity leave (UK Legislation, 2017d). Refusal for granting the paternity leave can also be deemed as discrimination against men (Long, 2012). In 2007, the employer had to pay £20,000 in compensation for not granting the paternity leave to the employee (Martin, 2007).
Stress: Stress is an area covered under the health and safety requirements (HSE, 2017). And so, it is the implied duty of the employer to ensure that the worker is not stressed due to the work done by them. Though, the stress has to be foreseeable and related to work. In Walker v. Northumberland County Council[1995] 1 All ER 737, the employer was held liable for the stress induced breakdown suffered by the employee (Swarb, 2017). In Barber v Somerset CC [2004] UKHL 13, the employer had to compensate the employee for the stress at work, which led to the mental breakdown of the employee (Swarb, 2016b).

Strengths and Weaknesses

The key points on which the claims can be brought up against Sparkling Cleaning Solutions Ltd have been summarized above. The following part highlights the strengths and weaknesses of each of these cases.

Family friendly – Parental Leave: In order to avail the benefits which have been granted to an employee through the various legislations highlighted above, regarding the parental leave, certain requirements have to be fulfilled. One of these requirements is of notice period. In case an employee wants to avail the parental leave, they have to give the employer, a notice period of twenty one days before the start of their intended period of leave. This notice period has to state the starting and ending dates of the notice (UK Government, 2017b).

In this case, no notice period was given by the first two female members and herein lays the strength of the case for Sparkling Cleaning Solutions Ltd. However, the case of Cortest Limited v O’Toole presents the weakness for the company to the point that the employees claim the same as an emergency basis of leave, as they are single parent and the child care requirement does not allow such a short notice.

48 hours: A case can also be made against the company, as highlighted above, for the extension of the working hours beyond 48 per week. So, a case can be made against the company for violation of working time regulations and this is the weakness. As already stated, the employees can only be made to work beyond 48 hours, if they sign an “opt out” agreement. This agreement can be withdrawn by the employees. Though, for the same, a notice of a week is required, or such period as decided between the employer and the employee; but the period of notice cannot exceed three months (Johnson, 2017).

This presents an advantage for the company. The reason being that the employees had signed an “opt out” agreement, which allowed the employer to continue the work of employees beyond the stated period. Moreover, the withdrawal of the “opt out” agreement was given just two days earlier and so, the period of one week was not followed. Furthermore, the case of Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV is also advantages as the notice for opting out was a collective one, and as per the case, the individual notices are required.

Paternity leave: Denial of paternity leave acts as a huge disadvantage for the company as the employer may have to pay compensation to the employer as per the 2007 case. However, in this case also, a 21 days’ notice period was required by the employee to the employer, denoting the starting period of the paternity leave (Rankin, 2009). No such intimation was given by Richard Buff for the paternity leave he was supposed to take that week. And so, this becomes the advantage or the strength for company in dealing with this case.
Stress: Yasmin Fogger has had a history of stress, which had previously led to her absence from work for eight months. Any such thing which leads to or increases the stress level of Yasmin Fogger or any other worker would act as problematic for the company. In this case, while the final orienteering exercise was going on, Yasmin Fogger slipped and sustained injuries. This could be coupled as negligence on part of the company, as they failed in ensuring that the employees were safe during the exercises being conduct on the training course planned by them (Mair, 2015).

The result of this was not only physical injuries but also her absence from work, which would bring back the stress for her. And so, the company would be liable for both the physical and mental agony caused to Yasmin Fogger. However, this case also has an advantage for the company. This stems from the contributory negligence of Yasmin Fogger, whereby she failed to take care of herself while going down the hill.

Avoiding Potential Workplace Conflicts

The above discussion highlights that the minutest of issues can result in conflicts, between the employer and employee, and can turn the employment relationship sour. This brings out the necessity for the companies to manage the employee relations in a better manner. There are certain general guidelines which can be used for avoiding the potential workplace conflicts.

The first one relates to making the employee aware about the code of ethics which are followed in the company, in form of the employee handbook. This acts as the most important guide for the employees and even contains the manner in which an issue has to be acknowledged, addressed, brought forward and resolved. This fosters mutual respect between the employee and employers by clearly demarcating between an acceptable and non-acceptable conduct and also such conduct, which may give rise to conflict (Mayhew, 2017).

The next option is to provide adequate training to both the employees and the employer regarding the manner in which the work has to be done fairly and properly. The human resource department also acts out as a medium of avoiding conflicts by addressing the issues brought forward by the employees (Mayhew, 2017).

The best option of avoiding workplace conflicts stems from communication. The communication has to be regularly and properly maintained. Moreover, once a problem is communicated, the same has to be given proper consideration (Huhman, 2017). In the case of Sparkling Cleaning Solutions Ltd, the first and foremost mistake of the company was not giving due consideration to the problems brought forward by the employees. Had they given the employees the leave, based on the points brought forward, such issues against the company would not have been brought forward.

Apart from the general guidelines, CIPD, Chartered Institute of Personnel and Development, and ACAS, Advisory, Conciliation and Arbitration Service, also present certain guidelines, which can be used to ensure that the workplace conflicts are avoided.

The ACAS has issued guidance and advice regarding the disputes and conflicts at the workplace. As per this guidance, by dealing with a conflict at an early stage, money, stress ad time can be saved the employee and employer alike and could put breaks on the development of the issue as a fully blown dispute. In order to minimize the conflicts at workplace, ACAS provides that the managers have to be trained so as to enable them to handle the conversation and situation going on with the employee. There is also a need to listen to others, encouraging open expression of the opinions and being empathetic, by recognizing the significance of feelings (ACAS, 2017).

The guideline also provides to have a clear grievance, dispute and discipline procedure so that the conflicts are dealt with in an efficient manner. In order to ensure that good practices are undertaken at work, the guide suggests the compliance with the legal obligations and responsibilities, as per which, the organizations are required to support and motivate their staff, so as to help them in being more productive. For dealing with future issues, ACAS suggest the inclusion of mediation clause in the employment contract (ACAS, 2017).

CIPD brings out two key models which have to be adopted by the companies. The first one is the high commitment model, which is based on managing of employees in a trustworthy manner and by presenting a mechanism of self-regulation for the employees. This model moves away from the situation being controlled by external pressure. Such practice ensures that both the employee and the organization perform in a better manner. By motivating the employees, high commitment model ensures that the issues are mutually resolved, instead of taking a big step in form of litigation (Farndale, 2010).

The other model provided by CIPD is the contingency model, where the employees are not managed in a single style and instead, dealt on the basis of particular situation. This model recognizes the need of addressing the individual issues in a specific manner. Had this model been applied in Sparkling Cleaning Solutions Ltd early on, the issues brought forward by each of the individuals could have been dealt with, based on the particular situation. This would have helped in avoiding the litigations, which are currently being brought forward against the company.

Conclusions

To conclude the discussion which has been covered till now, it is clearly apparent that there are certain legal claims which can be brought against Sparkling Cleaning Solutions Ltd and most of the claims have high chances of succeeding due to the points put strengths of the case of the employee and weakness of the case of the company. For instance, for the case brought by the two female employees, who have claimed paternal leave, their case being an emergency one, would be ruled against the company. In the same manner, Yasmin Fogger’s case has a high chance of being ruled against the company, due to the foreseeability of her mental distress. However, the case regarding the working time regulation and paternity leave claim can still be brought in favor of the company; even though the same may result in a break in the employment relationship.

Hence, it can be concluded that there is a high need for Sparkling Cleaning Solutions Ltd to adopt the general guidelines presented earlier, to avoid the rising of such claims, and if brought forward, the effective resolution of the same. There is also a need to adhere to the guidelines of both CIPD and ACAS as they present the guidelines, which are deemed as good practices in the workplaces in UK. The line managers and HRs have a crucial role when it comes to dispute resolution and so, these people in the company have to manage the employment relationships in an effective manner.

Recommendations

On the basis of the case of Sparkling Cleaning Solutions Ltd analyzed above, certain clear recommendations can be drawn for the company. These practices would reflect the best practices in both the field of human resource management and the employment law as a whole. The first recommendation in this regard is to be empathetic. The company should have understood the points raised by the four employees and their requests, even when they had some flaws in terms of shortage in notice period, should have been considered. These employees had genuine reasons for denying the trip and by not respecting the issues of their employees, the company created otherwise avoidable litigations against it.

The next recommendation is regarding the adoption of the general, ACAS and CIPD guidelines to ensure good governance and dealing with workplace conflicts. There is also a need for the company to communicate with its employees in a better manner, so that the employees can easily bring out their issues with trust, having the faith that they would be properly addressed. Lastly, there is a need for the company to adhere to the employment laws, while acknowledging the needs of the individuals. In short, the company has to give more respect and significance to the employment relations, to work in an efficient manner.

References: 

ACAS. (2017) Disputes and conflict in the workplace. [Online] ACAS. Available from: https://www.acas.org.uk/index.aspx?articleid=1662 [Accessed on: 12/02/17]

Bingham, C. (2016) Employment Relations: Fairness and Trust in the Workplace. London: SAGE Publications Ltd.

EUR Lex. (2017) Organisation of working time (basic Directive). [Online] EUR Lex. Available from: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV%3Ac10405 [Accessed on: 12/02/17]

Farndale, E. (2010) High Commitment Performance Management: The Roles of Justice and Trust. Personnel Review, 40(1).

HSE. (2017) Legal requirement. [Online] HSE. Available from: https://www.hse.gov.uk/stress/furtheradvice/legalresponsibility.htm [Accessed on: 12/02/17]

Huhman, H.R. (2017) 4 Strategies for Reducing Workplace Conflict. [Online] Entrepreneur. Available from: https://www.entrepreneur.com/article/241199 [Accessed on: 12/02/17]

ISB. (2017) S.I. No. 231/2000 - European Communities (Parental Leave) Regulations, 2000. [Online] ISB. Available from: https://www.irishstatutebook.ie/eli/2000/si/231/made/en/print [Accessed on: 12/02/17]

Johnson, M. (2017) How to opt-out staff from the 48 hour week. [Online] Rocket Lawyer Incorporated. Available from: https://www.rocketlawyer.co.uk/article/how-to-opt-out-staff-from-the-48-hour-week.rl [Accessed on: 12/02/17]

Long, V. (2012) Statutory Parental Leave and Pay in the UK: Stereotypes and Discrimination. The Equal Rights Review, 9.

Mair, D. (2015) Short-term Counselling in Higher Education: Context, Theory and Practice. Oxon: Routledge.

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Swarb. (2015) Cortest Limited v O’Toole: EAT 7 Nov 2007. [Online] Swarb. Available from: https://swarb.co.uk/cortest-limited-v-otoole-eat-7-nov-2007/ [Accessed on: 12/02/17]

Swarb. (2016a) Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (1): ECJ 5 Oct 2004. [Online] Swarb. Available from: https://swarb.co.uk/pfeiffer-v-deutsches-rotes-kreuz-kreisverband-waldshut-ev-1-ecj-5-oct-2004/ [Accessed on: 12/02/17]

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Swarb. (2017) Walker v Northumberland County Council: QBD 16 Nov 1994. [Online] Swarb. Available from: https://swarb.co.uk/walker-v-northumberland-county-council-qbd-16-nov-1994/ [Accessed on: 12/02/17]

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Bibliography: 

ACAS. (2017) Disputes and conflict in the workplace. [Online] ACAS. Available from: https://www.acas.org.uk/index.aspx?articleid=1662 [Accessed on: 12/02/17]

Bingham, C. (2016) Employment Relations: Fairness and Trust in the Workplace. London: SAGE Publications Ltd.

EUR Lex. (2017) Organisation of working time (basic Directive). [Online] EUR Lex. Available from: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV%3Ac10405 [Accessed on: 12/02/17]

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Mayhew, R. (2017) How to Stop Conflict in the Workplace Before It Happens. [Online] Chron. Available from: https://work.chron.com/stop-conflict-workplace-before-happens-5813.html [Accessed on: 12/02/17]

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Swarb. (2016a) Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (1): ECJ 5 Oct 2004. [Online] Swarb. Available from: https://swarb.co.uk/pfeiffer-v-deutsches-rotes-kreuz-kreisverband-waldshut-ev-1-ecj-5-oct-2004/ [Accessed on: 12/02/17]

Swarb. (2016b) Barber v Somerset County Council: HL 1 Apr 2004. [Online] Swarb. Available from: https://swarb.co.uk/barber-v-somerset-county-council-hl-1-apr-2004/ [Accessed on: 12/02/17]

Swarb. (2017) Walker v Northumberland County Council: QBD 16 Nov 1994. [Online] Swarb. Available from: https://swarb.co.uk/walker-v-northumberland-county-council-qbd-16-nov-1994/ [Accessed on: 12/02/17]

UK Government. (2017) Maximum weekly working hours. [Online] UK Government. Available from: https://www.gov.uk/maximum-weekly-working-hours/overview [Accessed on: 12/02/17]

UK Government. (2017b) Maximum weekly working hours. [Online] UK Government. Available from: https://www.gov.uk/parental-leave/notice-period [Accessed on: 12/02/17]

UK Legislation. (2017a) The Maternity and Parental Leave etc. Regulations 1999. [Online] UK Legislation. Available from: https://www.legislation.gov.uk/uksi/1999/3312/contents/made [Accessed on: 12/02/17]

UK Legislation. (2017b) Employment Rights Act 1996. [Online] UK Legislation. Available from: https://www.legislation.gov.uk/ukpga/1996/18/contents [Accessed on: 12/02/17]

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