Legal Aspects of Business

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 Table of Contents
Introduction ................................................................................................................................... 3
Prsent Scenario of Alex. ............................................................................................................... 4
Legal Advice to Alex ..................................................................................................................... 4
Solution in the Evidence of Case Law ..................................................................................... 5
Conclusion ..................................................................................................................................... 9
References .................................................................................................................................... 10

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Introduction
The world was created many millions of years ago. It has taken a long period to come in the
current situation. In today’s world, everything is run systematically. But, today’s situation has
not been formed in one day. The residents of society have formed rules and regulations under
which the residents of the society have to stay and lead their lives. Human beings always seek
freedom. They might also misuse their power in case of having unlimited power. In order to
ensure that the strong portion of the society does not dominate the weaker portion of the society
and remove the injustice, crime, and misdeeds from the society, the society has created their
respective laws. Under the laws, the members of the society will be able to get justice. There are
many departments of legal systems and separate rules for society. Like many other sections of
legal systems, there is a separate section in the UK legal system. The section is about
employment law. The section discusses the relationship between employers and employees of
UK (Parlett, 2011). The legal section of employment has been run so that the relationship
between the employers and employees do not deteriorate and a mutual understanding can be
established between the two. Moreover, it ensures that employers cannot dominate the interest of
the employees. The employment law discusses the patter of payment structure of the employees,
casual leave, sick leave, fair dismissal of the employees etc. (Cheeseman et al., 2013). In this
assignment, it will be shown how the owner of an organisation can solve an employment-related
issue with an ill employee of the organisation and compensation relate subject-matter. It will be
tried to make a legal and valid conclusion so that it does not create any unfair dismissal and the
employer also does not need to face loss.

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Prsent Scenario of Alex.
According to the described situation in the brief, Alex is the director of his own manufacturing
company that has 20 employees. All of the employees are humble, dutiful and has been working
for a long period. One of them, James, has been continuing not to come in the workplace due to
his medical tests for 4 weeks. The reason for his illness might be Cancer but Alex has yet to get
any certificate from the doctor. However, Alex is continuing giving full payment to James in
order to not make things worse for him. But, it is also not possible to him because his
organisation is not much big. He has already employed a temporary worker for compensating the
loss created by the absence of James. It is also almost sure that in case of being diagnosed as a
cancer patient, there will be a little chance that James will back to the workplace. Although he
wants to dismiss James, he is feared of the existing employment law of the UK. Now, he wants a
suitable solution for the situation.

Legal Advice to Alex

Alex,

Director of the Company

Sub: Legal solutions for the problems

According to the employment law of the UK and equality act 2010, an employer can dismiss his
employees in case of the following five reasons (Sargeant and Lewis, 2014). These are:

1. Misconduct by the employee.

2. The incapability of the employee.

3. Redundancy of the organisation.

4. The statutory duty of the employee.

5. Any logical reasons that validate the dismissal.

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From the previously mentioned points, James can be dismissed due to his capability or
performance. In the law, it has been said that an employee who cannot continue his work in the
organisation due to his incapability can be dismissed fairly with due evidence. By the way, the
capability of performance can be reduced by both of the lack of ability of an employee and
illness of the employee. According to the question, James has been absent in his workplace for
four weeks, his dismissal of performance will be due to the illness of the employee. By the way,
if we analyse the assignment question, it will be found that Cancer is suspected but not
confirmed by the doctor or due authority. Here lies the problem. Although it is fair to dismiss an
employee on the ground of incapability, Alex cannot dismiss James on the ground of capability
or performance (Jan, 2014). Because Alex does not have any proof in his hand by which he can
prove that the capability of James has reduced due to the illness. Without such legitimate proof,
it will be unfair to dismiss an employee. Now, the question might be how Alex can dismiss his
employee, James, as early as possible. In order to do it, Alex will require to collect enough
evidence to justify the dismissal fair because UK discrimination act considers dismissal as the
last resort. At first, Alex will require to adopt the following ways:

1. A suitable way to support him such as helping him to continue his treatment for a specific
period. Grant a flexible working period for James until he gets fully cured.

2. Monitor the physical condition of James and permit for a specific period of time such as one
year to recover fully and come back to the workplace.

3. After the passage of a certain period, Alex may seek for the medical report of James about his
physical condition.

If the medical report is not satisfactory and cannot indicate a specific period of time to back his
workplace, then, Alex may dismiss James from his workplace. Because it is not possible for Alex
to keep his place vacant for an infinite period of time as it will be harmful for the business
organisation.

Solution in the Evidence of Case Law

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Facts: It has been seen that Ms O’Brien is a teacher of a school and head of the department of the
school. While providing services in the school, a pupil of the school assaulted her and it has
made her unable to do work. That’s why she was absent in the school for a period of time. In
reality, it was not possible for the school authority to carry on the performance with the absence
of a teacher. So, they wanted to know the expected time when the teacher would return to school
as it had been more than a year off work. Ms O’Brien refused to attend a meeting in which the
authority would discuss the related issues such as the possible time to return because she
suspected that the meeting would make her mental condition severe. However, she made a
formal document that provides the answers to some relevant questions. The answers were not
satisfactory and did not provide any valuable responses in regard to the return to her workplace.
So, the authority decided to dismiss her. But, the got dissatisfied with the decision. She appealed
against the decision and submitted two documents that indicated that she was fit for work.
According to the first document, she was completely fit. Then, the second document was about
the statement of a psychologist. The statement stated that she would be fit enough to join the
work in case of having taken the prescribed course of treatment. Then, she declared that she had
taken the prescribed courses of treatment that made her fully fit for work. But, the appeal panel
was not satisfied at this answer because she was declared not fit for the work on the previous
date. Then, MS O’Brien brought a complaint to the tribunal complaining that the organisation
had dismissed her for unfair and disability discrimination. Then, the tribunal upheld in favour of
her saying that the organisation did not become able to show sufficient proof to affirm their
claims. So, they advised the school authority to wait a little longer and permit time to wait for the
total cure of Ms O’Brien. Moreover, they should have sought further investigation in relation to
the documents that certified her fit for the work. On the other hand, EAT took the side of the
employer because a long time absence of such a senior employee made the school difficult to
run. Further, they also declared that it did not require any strong evidence to prove the impact of
such a senior employee for a long period. That’s why the claim of the school authority was
logical. Later, the court of appeal affirmed the decision of the tribunal and said that they should
have waited a little longer for the purpose of giving her the chance to get well. However, Ms
O’Brien submitted a document saying her fit for the work, the school authority could dismiss her
after testing her fitness for work in the workplace.

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Then, the court gave some guidance that could be taken in case of taking long-term sick leave.
The guidance is:

1. The dismissal process will not be unfair for the employer in case of having the sick leave for
more than 12 months or one year. Because there will come a time when it will be a must to do
some finally (Case update (1): Sickness absence – Long term illness & dismissal, 2017).

2. A vital factor will be how the organisation is affected by the absence of the employee.
Moreover, the evidence also must be provided.

3. Where there is an appeal hearing and additional information is given, this must be considered
properly, as the decision to dismiss must be fair at the time of the appeal.

Solution: In the scenario of the question, James has been absent for four weeks because of his
physical condition. Alex suspected that James is ill because of Cancer. Now, Alex cannot
immediately dismiss James because the sick leave is not more than 1 year. Now, Alex can permit
sick leave for up to a year. Then, it will require to assess whether James is fit for work or not. If
he is not fit for work, then, it will not create any problems in dismissing James on the ground of
incapability. But, it will not require to pay any payment for the absence of James.

Final solution considering the legal system, Equality Act, 2010 of UK and case law
combined:

The legal system of a country is established so that the weak portion of a country get justice and
does not get deprived of equality. There is an equality act that has been passed in 2010
(Richardson, 2010). The act has considered some sections for justice. The key concepts are age,
disability, race, religion, sex and sexual orientation, gender discrimination, marriage and civil
partnership etc. The case of the discussed scenario in the question is about the sickness of an
employee of Alex. He has been sick and absent for almost one month. Alex is concerned about
the absence of James because the absence of an employee affects the performance of the
organisation. On the other hand, the organisation requires to recruit a temporary employee in the
post of James. According to the existing law of UK and case law, Alex cannot dismiss James on
the ground of incapability or performance because he has not got any legal proof that can certify
James unfit for work. So, these following steps, Alex can take in order to make James dismiss of
the organisation:

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1. At first, Alex can seek the certificate from James that certifies him cured and fit for work in
the organisation of Alex. If James cannot show the certificate for fitness, then, Alex can grant
James for sick leave of specific period of time. The period of leave might be almost one year.

2. In the meantime, Alex can recruit a temporary employee who will serve the organisation
instead of James. It will not require Alex to give the payment of James as he is not working in
the organisation.

2. After the passage of the specified period of time that can be maximum one year, Alex can
want James to submit the certificate of fitness and join the workplace in case of being fully fit.

3. After the submission by James, Alex can make the decision easily whether James is fit for
work or not based on the certificate. In case of being unfit for work, Alex can easily dismiss
James on the ground of incapability or performance. And, there will not be any legal burden in
regard to dismissing him on the ground of incapability or performance. Moreover, it will not be
an unfair dismissal also.

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Conclusion
The legal system of a country is one of the most important parts of a country. Because it ensures
discipline in the country by ensuring the legal justice of the residents of the country. The UK is
also a country having many parts and the legal system of this country has been crafted so that the
strong portion of the country cannot dominate and deprive the weaker portion of the country.
Employment law is a vital part of the UK legal system. The law deals with the proper justice of
the employees of the organisations within the UK and creates a good relationship between the
employers and employees of the organisations. In the stated case of the question, the employer,
Alex, is concerned about the absence of his employee James. The absence of James makes the
condition worse for the organisation and the organisation cannot run its operation properly due to
the absence of James. Considering the legal system of the UK and case law, Alex cannot dismiss
James because he does not have any document that can make James unfit for work. So, Alex will
require to ask for a certificate of fitness. As James is sick, Alex can give a specific period of
time. The period might be maximum for one year. After the passage of one year, James can be
terminated in case of not being fit. But, immediate termination will be unfair. If Alex makes
decision based on the suggestion, it will be good for him.

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References
Case update (1): Sickness absence – Long term illness & dismissal. (2017). Manzinies Law.
[online] Available at: https://www.menzieslaw.co.uk/case-update-1-sickness-absence-long-term-
illness-dismissal/ [Accessed 30 Apr. 2019].

Cheeseman, H., Anthony, J., Bettinghaus, B., Smith, K. and Cheeseman, H. (2013). Business
Law. Welwyn Garden City: Pearson Education UK.

Jan, N. (2014). Dismissal. Knowres Publishing.

Kanani, A. (2011). Quick guide to incapacity dismissals.

Parlett, K. (2011). The individual in the international legal system. Cambridge, UK: Cambridge
University Press.

Richardson, R. (2010). Equality Priorities and Equality Objectives – the Equality Act 2010, a
cautious welcome. Race Equality Teaching, 28(2), pp.6-11.

Richardson, R. (2010). Equality Priorities and Equality Objectives – the Equality Act 2010, a
cautious welcome. Race Equality Teaching, 28(2), pp.6-11.

Sargeant, M. and Lewis, D. (2014). Employment Law. Pearson Education UK.

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