Employment Law and its Implications

Executive Summary

The primary focus of this paper is the legal environment that shapes the management of employees. Examining the case of XYZ Company, the paper begins with a look at some of the legal risks that the firm faces as a result of its recruitment and human resource management practices. Here, the paper focuses on the risk of lawsuits inspired by the company’s discriminatory practices. Next, the paper explores the various defenses that the firm could pursue in justifying its decision. It is established that generally, these defenses are strong and will help the frim to build a strong case. The paper concludes with the recommendation that XYZ should overhaul its recruitment practices if it is to avoid the legal risks described in the paper.

Employment Law and its Implications

The UK is among the countries that are leading the world in the protection of workers. Legislators have enacted rules, guidelines and laws which govern employment relations in the UL. Despite these rules and laws, violations of the rights of employees often occur. For example, there are employers who discriminate against their employees on the basis of such issues as age, gender or sexual orientation. In addition to hurting employee loyalty and productivity, these violations also expose the employers to the risk of legal action. The XYZ company in the case study is an example of a company whose future could be compromised due to its various violations of UK employment law. If the company truly desires to safeguard its future and prevent legal action, it should ensure that its human rights management practices are in full compliance with relevant UK employment law.

Legal Risks 

Age Discrimination 

The course of action that XYZ wishes to pursue presents a number of legal risks. A lawsuit filed over the company’s age discrimination is among the risks that the company faces. In the case, it is noted that Julie Keene’s application to replace the outgoing Sales Director is rejected on account of her age. The company feels that she is too young to be trusted to satisfactorily address the needs of the customers, most of whom are older. Keene is not the only XYZ Company who may file an age discrimination lawsuit against the company. Derek Constant could also sue the company. Being 60 years old, the firm feels that he is too old to serve as Sales Director. While the company’s decision to reject his application is based on a number of factors, in his lawsuit, Constant could assert that his age was the primary reason for the rejection of the application. Whereas the concerns of the company seem valid, the rejection of Constant’s and Keene’s applications could be against UK law. In the UK, the Equality Act (2010) protects citizens against various forms of discrimination. This law demands that employers and other parties should treat citizens fairly. Since this law is clear in its prohibition of age-based discrimination, XYZ risks being sued for violating the provisions of the Equality Act. There have been numerous cases where employees who suffered maltreatment because of their age have sued their employers. For example, in 2009, a 42-year old banker sued his boss for age discrimination. The tribunal hearing the case determined that the boss had discriminated against the banker on account of his age by replacing him (the banker) with a younger employee (Wallop 2009). This case shows that tribunals tend to defend the rights of employees who have been victims of age discrimination. Therefore, XYZ should not be surprised if Keene files an age discrimination lawsuit.

Gender Discrimination 

A lawsuit inspired by age discrimination is not the only legal risk of which XYZ should be wary. The company’s course of action also exposes it to the risk of a lawsuit over gender discrimination. The UK is clearly committed to promoting fairness, justice and equality in employment. Evidence for this commitment can be seen in the enactment of the Equality Act (2010). Apart from shielding residents against age discrimination, this act also prohibits gender discrimination (“Sex Discrimination” n.d). While the act applies to many parties, it is particularly relevant to employers. XYZ risks running afoul of this act. The case mentions that Keene’s application was rejected because she was female. The success that Wendy Williams had when she sued the Ministry of Defense for sex discrimination indicates that XYZ could face a similar lawsuit. Williams alleged that she had been denied a promotion which was given to a male colleague. She was denied this promotion despite her lengthy and faithful service (Cooper 2014). Nadia Eweida, Mark McCammon and council workers in Birmingham are other employees in the UK in whose favor employment tribunals have ruled (Dugan 2014). All these workers sued their employees for sex discrimination. These cases show that the UK does not tolerate age discrimination.

Nepotism 

After considering all the applications, XYZ Company decided to promote Mike Replica. Replica’s experience and promise make him perfect for this position. However, there are various issues which raise the risk of legal action. It is stated that Replica wife is the niece of the Finance Director. Furthermore, Replica is good friends with the company’s CEO, Paul Double-Barrel. A lawsuit over nepotism could be filed in response to the promotion of Replica. It is unfortunate that the UK lacks laws which are explicit in their prohibition of nepotism. However, an individual can still mount a solid case against XYZ for its discriminatory practices. It is important to note that since there are no legal guidelines which forbid nepotism, it will be difficult to establish that Replica’s promotion was illegal.

Racial Discrimination

The racial and ethnic diversity of the UK is among its key strengths. Every year, the UK welcomes thousands of migrants who pursue opportunities and their dreams. However, as is the case with other European nations, the UK has witnessed a wave of anti-immigrant sentiment. An examination of the employment practices of XYZ reveals that this sentiment has found its way into this company. Aldo Viscida is among the members of the sales team who applied for the Sales Director position. His application was dismissed because he lacks language competency. While the company contends that it rejected his application because he is unable to speak English well, Viscida may still sue, alleging discrimination on the basis of nationality. The employment tribunal hearing the case is likely to rule in his favor. This is because there are laws which make it clear that no worker should suffer harm or maltreatment because of their nationality. For example, among the provisions of the Equality Act (2010) is that discrimination on account of race is illegal (“Race Discrimination” n.d). While it does not explicitly outlaw discrimination based on nationalism, the fact that this act forbids racial discrimination in employment implies that employers are not to violate the equal rights of foreign workers. Therefore, inspired by the protection that the Equality Act offers, Viscida may challenge the rejection of his application before an employment tribunal. In the past, various tribunals have sided with victims of racial discrimination. For instance, in 2016, an employment tribunal ruled that a British officer with Asian origin had suffered racial discrimination while serving with Kent Police (Quinn 2016). The police department had subjected this officer to various forms of maltreatment which violated the equality provisions of UK law. The case of this offer should build Viscida’s confidence as he sues XYZ for racial discrimination.

Available Defenses 

Legitimate Aim Argument 

The legal threats that XYZ faces are serious and could compromise its future. However, the company should not be too concerned because there are various defenses that it could use to justify its decision to hire Replica and dismiss the applications of the other candidates. In some cases, indirect forms of discrimination do not amount to violations of the law. To prove that its discriminatory practices are not illegal, firms need to establish that the practices are in pursuit of a legitimate aim (Lane & Ingleby 2017). Essentially, a company needs to show that the practices are necessary for the attainment of a particular objective. In the case of XYZ, the firm could assert that the apparent discrimination is necessary. For example, on the surface, the company’s decision to reject Viscida’s application appears discriminatory. However, it is noted that Viscida lacks the language skills that the position of Sales Director requires. In defending the rejection of Viscida’s application, XYZ could contend that its objective to fill the Sales Director position with an individual with unmatched language competence is a legitimate aim. This defense is strong and would shield the company against allegations that by rejecting Viscida’s claim, it acted maliciously and in arrogant defiance of the law. It is important to note that the legitimate aim argument can be used to defend XYZ’s decision to dismiss the other employees. For example, to manage effectively, the Sales Director needs to command the respect and authority of her team. Since she is too young, Keene cannot be expected to lead her team properly. Therefore, in the pursuit of its desire to have an authoritative individual serve as the Sales Director, XYZ justifiably rejects Keene’s application.

Occupational Requirements Argument 

The legitimate aim argument is not the only defense available to XYZ when it is confronted with a lawsuit filed by one of the rejected employees. The law justifies discrimination in cases where candidates need to possess particular traits. These traits could be tied to an individual’s age or gender. Essentially, when an individual does not meet certain occupational requirements, a company would be acting within the law when it denies the individual an opportunity (Pitt 2009). The occupational requirement argument applies to nearly all the cases that XYZ’s employees could file. For example, XYZ’s customers prefer to be entertained by a male employee. Since she is female, there are valid questions regarding Keene’s ability to entertain the customers. Therefore, XYZ could argue that Keene’s gender strips her of the occupations requirements that the Sales Director position demands. XYZ may apply the occupational requirement argument to a case brought by Viscida. As already noted, Viscida lacks the English language competency that he would need to demonstrate if promoted to the position of Sales Director. In the case, it is made clear that the Sales Director would be expected to prepare reports. Viscida is clearly disadvantaged and would undoubtedly be unable to deliver on the expectations attached to the office of the Sales Director. Therefore, XYZ would be able to mount a strong case in challenging complaints about discrimination.

Insights from Real Cases 

Tribunals in the UK have heard countless cases whose key theme was employment discrimination. While these tribunals are friendlier to employees who have suffered discrimination, there have been instances where they have sided with employers. For example, in Taiwo v. Olaigbe and another, the tribunal ruled that the claimant, Taiwo had not suffered racial discrimination (“Taiwo v. Olaigbe” 2016). In reaching this verdict, the tribunal examined the law and the particular circumstances of the case. The tribunal determined that when an individual suffers harm as a result of vulnerabilities stemming from their racial identity or nationality, the employer cannot be accused of having orchestrated discrimination. This case provides insights that XYZ can use to defend its decision. For example, the company could argue that while it sympathizes with Viscida for his lack of the required English skills, it cannot pay the price for his language incompetence. Essentially, the company would be arguing that its decision to reject Viscida’s application is legal because Viscida is a vulnerable migrant whose troubles cannot be blamed on the company. In issuing the ruling, the tribunal hearing the Taiwo v. Olaigbe found that Taiwo had indeed suffered harm but absolved the employer of having committed discrimination. The tribunal’s admission that Taiwo had endured hardship suggests that relying on the details of this case may not help XYZ to build a strong case.

The Profit Argument 

Generating revenue and maximizing profit are the key goals that nearly all companies wish to pursue. In the pursuit of these goals, companies may be forced to adopt discriminatory practices. While it is difficult to justify these practices, a firm could have some success when it uses the profit argument to defend discrimination (“Justifying Discrimination” n.d). XYZ could rely on the profit argument when one of the employees whose applications were rejected files a lawsuit. For example, in an earlier discussion, it was noted that the customers of XYZ prefer to be entertained by male employees. Keene is therefore an inappropriate choice for Sales Director. If the company had promoted Keene, it would be risking losing customers. The loss of customers would lead to the company incurring losses. Therefore, the firm could assert that refusing to promote Keene was intended to protect its financial interests. This argument is rather weak and would not have a significant impact on the company’s case.

Race, Gender, Age have nothing to do with it 

Should they decide to sue, the rejected XYZ employees would be hard pressed to prove that their rejection was on the basis of factors other than merit and competence. These employees will need to show that the company did indeed reject them because of their race, gender and nationality. The company could argue that when filling the Sales Director position, no consideration was made for such factors as race and gender. This argument is solid and will build the company’s case. Replica is well qualified for the job. For example, in his time at the company, he has shown commitment and remarkable promise. While it is true that he has married the nice of one of the senior executives at the company and that he is close friends with the CEO, it is difficult to establish that these factors played any role in his appointment. Therefore, XYZ will be able to build a strong case when it contends that the rejection of the other employees was not related to their race, gender or age.

Recommendation for the Future 

The discussion above has revealed that the decision to hire Replica has given rise to risks which could compromise the company’s operations. While the decision is not in itself unwise, it has exposed the firm to the threat of legal action. In the future, the company should adopt a different approach when it wishes to fill a senior position. It is recommended that instead of adopting internal recruitment, the company should invite outsiders to apply for positions. There are a number of benefits that open recruitment delivers. One, as they invite the wider public to apply for a position, firms expand the pool from which to recruit. Had it allowed the public to apply for the position of Sales Director, XYZ would not be limited to its 10-member sales team. Two, a wider pool of candidates enables companies to prevent discrimination. Wider pools are usually diverse and represent the different segments of a population. Since it recruited internally, XYZ was bound to commit one form of discrimination or another. Therefore, when recruiting in the future, XYZ should open positions to the general public.

Applicable Theories 

In the discussion above, XYZ has been advised to embrace open recruitment. To implement this recommendation successfully, the company needs to borrow insights from various theories. Lewin’s change management model and the model developed by Jeannie Duck are among the theories that apply to the case of XYZ. Unfreezing, the implementation of change, and refreezing are the basic steps of Lewin’s model (Cummings & Worley 2014). As they adopt changes, firms need to begin with an examination of their current practices with the goal of identifying issues requiring improvement. The companies then implement the needed change, after which they embed the change into their culture and routine practices. Using Lewin’s model, XYZ will understand that its internal recruitment approach is ineffective and requires change. This realization will prompt the company to open vacant positions to the general public. Duck’s model also presents valuable insights regarding change implementation. The steps in this model are stagnation, preparation, implementation, determination and fruition (Duck 2001). This model tracks the change implementation processes from the stage where a company encounters hardships in convincing stakeholders to support change initiatives, to the step where the firms witness improvements after implementing change. Applying this model, XYZ will be able to tackle any resistance to change, prepare stakeholders for the change and reap the benefits of the change.

In conclusion, in all their endeavors, firms should strive to uphold justice, fairness and equality. It is unfortunate that there are firms which struggle to treat all their employees equally. XYZ is one such company. An analysis of the company’s recruitment practices indicates that it has committed various forms of discrimination. By discriminating against its employees, the company invites legal risks. While these risks are substantial and frightening, there are numerous defenses that the company could employ. Relying on these defenses, the firm could successfully justify its recruitment decisions. However, to prevent the legal risks in the first place, the company should overhaul its recruitment policy. Other firms also need to understand that inviting the public to apply for positions is the best recruitment strategy.

References

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https://www.independent.co.uk/news/uk/home-news/rafs-top-nurse-wendy-williams-wins-sexism-ruling-against-ministry-of-defence-8672982.html

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https://www.citizensadvice.org.uk/law-and-courts/discrimination/what-are-the-different-types-of discrimination/justifying-discrimination/

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http://www.era-comm.eu/oldoku/Adiskri/05_Occupational_requirements/2009_Pitt_EN.pdf

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Viewed June 11, 2018 http://www.acas.org.uk/index.aspx?articleid=1849

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https://www.equalityhumanrights.com/en/advice-and-guidance/sex-discrimination

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Employment Cases Update, viewed June 11, 2018 from

https://www.employmentcasesupdate.co.uk/site.aspx?i=ed31169

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