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Many cases come before the courts because there is a dispute over the meaning of an Act of Parliament. By referring to relevant case law, identify and discuss the various approaches to statutory interpretation.
Maximum 50 marks
The following case scenario concerns a medium sized organisation, the Best Cabinets Company Ltd., which employs 240 workers. The company manufactures and sells kitchen units and operates from a main site in Camford and a number of small showrooms throughout the country. The Sales department is split into two divisions – one is ‘Retail’ sales where individual customers can purchase kitchen units direct from the company via the showrooms; the other division is ‘Commercial’ sales where builders and other organisations purchase the units, mostly in bulk. You were appointed as HR Manager one month ago when you replaced the previous ‘office manager’, George Hughes, who recently retired.
When you arrived in your new job you discovered that there were few up to date policies and procedures for the management of human resources, and many decisions have been made by line managers with no clear guidance from George Hughes, who had concentrated on the line management of the small team of general staff. There appears to have been no formal training on handling difficult HR issues for line management. There is a formal disciplinary procedure and a formal grievance procedure in place, both of which appear to have been copied from an out-dated Government website without modification – extracts from these are included at the end of the case scenario.
John Perk, aged 29, works for Best Cabinets in the manufacturing workshop where the kitchen units are assembled. When John started work 3 years ago he was asked by his line manager to sign the standard contract confirming his terms and conditions. The contract refers to John as being “a worker” whilst at Best Cabinets. The contract also contains a clause which states “In the event of the worker being unable or unwilling to perform the services personally, he shall arrange at his own expense entirely, for another suitable person to perform the service”. John does not really understand what this clause means but he has, in any event, always turned up to work. He receives a weekly salary of £300 in return for working a 35 hour week, 9 – 5pm Monday to Friday. His wage is paid directly to him via a monthly direct debit into his bank account and his tax and National Insurance is deducted directly by Best Cabinets. The company pay for his safety boots and overalls which he keeps in his personal locker and for the past two years he has received free membership at a local sports club as an additional benefit.
John’s job involves assembling the wooden kitchen units and fixing the plastic legs and feet onto the bottom of the units. It is a tedious job and in order to alleviate the boredom John is known to engage in ‘horseplay’ in the workshop and he is known as a ‘joker’ at work. A couple of months ago John’s supervisor, Peter Smith, complained to the Production Manager, Tom Zeng, about John’s attitude. The assembly line is monitored by CCTV but Tom has never seen John doing anything that appeared to be unacceptable or ‘bad’ behaviour and John has never been formally disciplined at work. Nonetheless, following Peter’s comments, Tom had a quiet word with him last month and told him that he had to “grow up and stop messing around”.
One day last month John left the assembly line to go for his coffee break. His friend Jim, who had previously been the victim of one of John’s practical jokes, decided to repay him and he undid the screws in the last kitchen unit that John had assembled. When John returned to the workshop he leant on the kitchen unit and it collapsed on the floor. He fell on the ground and everyone started to laugh. Peter Smith walked over to the area and asked what was happening as everyone was standing around laughing, having stopped work. When Peter saw John lying on the floor on a broken kitchen unit he became angry and shouted to him: “My office - 10 minutes on your own!” John went to Peter’s office as requested. He was given no time to prepare for the meeting, which lasted only a short time as Peter shouted to him as he walked in “This is the last straw, you’ve done it this time – you’ll never change you idiot. Leave and don’t come back!” When John attempted to explain what had happened, Peter interjected and said “Look, I’ve heard it all before from you – I’m not interested in hearing another story – go”.
John left the workshop immediately but lodged a subsequent appeal against the dismissal. During the appeal hearing the next week, which was heard by Tom Zeng on his own, John was not afforded the opportunity to ask any questions or present any evidence. Tom simply read out a pre-prepared statement saying “In the light of your previous disciplinary record the company will not be reversing its decision to dismiss”. John has since visited the local law centre and has submitted an ET1 form to the Employment Tribunal. You received notice of this today.
You are asked to prepare a report which sets out the legal issues that have arisen in this scenario and give your advice on the steps that should be taken by the company to address these problems.
Further Case Scenario Background Information:
Best Cabinets Disciplinary Procedures (extract)
1) Purpose and Scope
The Company’s aim is to encourage and help individuals to improve their conduct and achieve and maintain standards of job performance and attendance. The company rules are in your staff handbook and are also displayed in the general office at each site. This procedure applies to all employees. The aim is to ensure consistent and fair treatment for all.
a) The disciplinary procedure is designed to establish the facts quickly and to deal consistently with disciplinary issues. No disciplinary action will be taken until the matter has been fully investigated.
b) Employees will be informed of any allegations against them at least 3 days before any formal disciplinary meeting is held.
c) At final stages only, employees will have the opportunity to state their case and be represented, if they wish, at the hearings by a fellow worker where deemed appropriate.
d) No employee will be dismissed for a first breach of discipline except in the case of gross misconduct when the penalty will be dismissal without notice or payment in lieu of notice.
e) The procedure may be implemented at any stage if the employee’s alleged misconduct warrants such action.
3) The Procedure
Minor faults will be dealt with informally but where the matter is more serious the following procedure will be used:
Stage 1 - Oral Warning
If conduct or performance does not meet acceptable standards the employee will normally be given a formal oral warning, which will be recorded, but will be “spent” after 6 months, subject to satisfactory conduct and performance. S/he will be advised of the reason for the warning, that it is the first stage of the disciplinary procedure, and of his or her right of appeal.
Stage 2 - Written Warning
If the offence is a serious one, or if a further offence occurs, a WRITTEN WARNING will be given to the employee by the supervisor. This will give details of the complaint, the improvement required and the timescale. It will warn that action under Stage 3 (below) will be considered if there is no satisfactory improvement and will advise of the right of appeal. A copy of this warning will be kept on the individuals personnel file, but will be regarded as “spent” after 12 months of satisfactory conduct and performance.
Stage 3 - Final written warning or disciplinary suspension
If there is still a failure to improve either conduct or performance to a satisfactory level; or, if the misconduct is sufficiently serious to warrant only one written warning but not sufficiently serious to warrant dismissal (in effect both a first and final warning) A FINAL WRITTEN WARNING will be given to the employee. This will give details of the complaint, and warn that dismissal will result if there is no satisfactory improvement within a specified timescale, and will advise of the right of appeal. A copy of this final written warning will be kept by the line manager but it will be “spent” after 24 months, subject to satisfactory conduct and performance. Alternatively, consideration may be given to imposing a penalty of a disciplinary suspension without pay for up to a maximum of five working days.
Stage 4 – Dismissal
If conduct or performance is still unsatisfactory and the employee fails to reach the prescribed standard DISMISSAL will normally result. An appropriate senior manager can take the decision to dismiss. The employee will be provided, as soon as reasonably practicable, with written reasons for the dismissal and the date on which the employment will terminate.
An employee who wishes to appeal against a disciplinary decision should inform the Human Resources Manager within two working days. An appropriate manager along with the HR Manager will hear the appeal and their decision will be final. At the appeal any disciplinary penalty imposed may be reviewed but cannot be increased.
5) Gross Misconduct
The following list provides examples of offences that are normally regarded by the Company as gross misconduct:
If you are accused of an act of gross misconduct, you may be suspended from work on full pay, normally for no more than five working days, while the company investigates the alleged offence. If, on completion of the investigation and the disciplinary procedure, the company is satisfied that gross misconduct has occurred, the result will normally be summary dismissal without notice or payment in lieu of notice.
Best Cabinets Grievance Procedure (extract)
Purpose and Scope
This Procedure applies to all current employees of the company and covers all issues which are amenable to local determination and resolution. The guiding principle of this Procedure is that issues should be resolved as near their point of origin as possible and as soon as possible. In consequence the timescales included in the Procedure may be extended or shortened by mutual consent.
An employee who wishes to raise any issue in which s/he is directly concerned must first raise it with their immediate manager, making it clear that s/he is taking the first step in the procedure.
Their immediate manager will arrange a meeting as quickly as possible so that the issue can be discussed with the employee(s). This meeting will be held in a room away from the general work environment.
If a satisfactory solution has not been reached within a maximum of 5 working days the employee may refer the issue to their Manager’s superior under Stage 3 of the Procedure.
The Manager’s superior will arrange a meeting as quickly as possible so that the issue can be discussed with the employee(s). If the employee wishes to have a fellow employee as their representative present at this meeting, then the employee must notify the manager of their representative’s name and they will be invited to attend.
If a satisfactory solution has not been reached within seven working days, the employee may refer the issue to the HR Manager who will arrange for a Senior Manager to meet with the employee(s) and (where requested) their representative under stage 4 below.
The Senior Manager will arrange a meeting as soon as possible so that the issue can be discussed with the employee(s) and his/her representative – this meeting shall take place not more than seven working days from the employee’s request.
If the Senior Manager is unable to resolve the grievance, the employee(s) can request a final “Appeal” meeting with the Managing Director.
Final Appeal Meeting
The Managing Director will arrange a meeting with the employee(s) and his/her representative in no less than 7 working days (subject to his/her availability). Any decision taken by the Managing Director to resolve the grievance at this stage is final.
Note: If the grievance involves a complaint against the immediate manager of the employee(s) the matter can be referred, in the first instance directly to the Manager’s superior (as under stage 3). However, the immediate manager must be informed in writing of the grievance against him/her.
Extracts from Best Cabinets Staff Handbook:
“Sickness absence reporting:
All staff who are unable to attend work because of illness must telephone into their depot and speak to their line manager by no later than 10.00 am on the first morning of illness. If the illness is likely to last more than 1 week (6 continuous working days) then a doctors’ certificate is required. If an employee is unable personally to telephone in, then they can ask another person – i.e. relative or spouse, to call in on their behalf.
Failure to notify the company as above may be treated as unauthorised absence under the disciplinary procedure”.
All staff are entitled to 20 days paid holiday a year, plus all official Bank Holidays. The holiday year is from 1 October to the 30th September annually. All requests to take leave must be approved by your Manager, and will not normally be refused unless the needs of the service require you to work. To avoid any possible disappointment, you should always clear holiday dates with your Manager well in advance before making bookings or travel arrangements. Holiday entitlement must be used by end of each holiday year.
Your Manager will advise you if, for operational reasons, you are required to take leave at certain times of the year. However, due to the nature of our business there is an expectation that, where possible, the majority of your holiday entitlement will be taken during the months of July and August as these are the slowest business months for the Company.
If your employment begins or ends part way through the leave year, your holiday entitlement for that year will be calculated on a pro-rata basis for each complete calendar month of service”.
“Other Absence: Special Leave or temporary changes to working times
If employees have domestic, family or personal reasons, then unpaid leave of a short duration may be allowed at the discretion of your manager. If there are domestic, family or personal reasons for changes in your working times, these should be discussed and agreed with your Manager.”
Maximum 50 marks