moot court report - law educator m. b. cowley pgdipstat ba dphil

Cowley, M. (2015). MOOT COURT REPORT: Applying the Equality Act (2010) & the Health & Safety at Work Act (1974). Law Educator: Courses, Materials, & Teaching eJournal, vol. 11, issue 53: November 26, 2015.

MOOT COURT REPORT: Applying the Equality Act (2010) & the Health & Safety at Work

Act (1974)

WEEK 8: Principles of Marketing (Paula O’Hanlon)

Momentum Sales & Marketing for Small & Medium Business SMES (2015)

Judges: S. Gregory, J. Cunningham, & M. Cowley

Judgment Author: M. Cowley

Objective: To apply Legal, Regulatory, & Ethical Requirements in Mock Labour Trials

METHOD

The objective of this task was to apply an understanding of an organisation’s procedures for

dealing with legal, regulatory, and ethical requirements, as the Equality Act (2010) and the

Health & Safety at Work Act (1974) stipulates, to organisational grievance-solving.

The Task Design & Procedure.

The class was separated into two groups based on whether they had, an Equality Act (2010)

relevant grievance, or a Health & Safety at Work Act (1974) relevant grievance. Each group

was sub-divided into aggrieved staff and non-aggrieved management (encompassing HR,

i.e., Human Resources). A boardroom was re-organised to resemble a labour court setting.

Three Labour Court Judges (i.e., one head judge, and two co-judges) were previously

independently selected and designated to: procedurally adjudicate the proceedings; note-


take and ask probing questions; and then to deliberate on the merits of each group and

their grievance based on their arguments and evidential reasoning in form of a written

judgment.

RESULTS

Case Summary & Findings 1:

Mr. Sheridan et al. v. Family Company A

The complainants outlined their case clearly and concisely to the effect that widespread

discrimination in the form of sexual harassment, and gender discrimination in particular,

had taken place over a significant amount of time. Their decision to take a collective action

case against the company to strengthen their case and pursue a lump-sum claim, due to the

general nature of the grievance, and the divergent and specific forms of sexual harassment

and/or gender discrimination has been noted. Thus the complainants provided

corroborating evidence that this discrimination manifested itself in three main ways: (i) it

was direct and pay related as in Ms. Neary’s case, (ii) it was indirect and maternity-leave

related as in Ms. Mc Ardle’s case, and (iii) it was direct as associated discrimination related

as in Mr. Sheridan’s case. The documentation provided by the complainants did

demonstrate that the company did not: (i) follow fair-pay guidelines in accordance with the

anti-discrimination in the workplace legislation within the remit of the Equality Act (2010),

(ii) provide the same conditions of employment post maternity leave in accordance with

Section 26 of the Maternity Protection Act (1994: Amendments 2004), or change the

contractual obligations, or nature of the post, in accordance with post maternity leave

employee requests in accordance to Section 27 of the Maternity Protection Act (1994:

Amendments 2004) as confirmed by non-implemented but future plan oriented HR, and (iii)

engaged in a systematic campaign of direct and associated discrimination against Mr.

Sheridan, as evidenced by the e-mail set of correspondences circulated and provided to the

court. That notwithstanding, the court would also like to note that there was a widespread

culture of gender discrimination, and sexual bullying of the women staff, who have taken

this case, and we will consider the claim further in terms of compensation relative to

offensiveness to dignity at work and projected future loss of earnings given time served

(within the broader Employment Law framework of The Safety Health and Welfare at Work

Act 2005), which requires employers to protect the right of each individual to dignity at

work. In this case anti-bullying policy and procedures, while accommodated by HR through

their guidelines and procedure recommendations, were not enforced, and so a

proportionate claim must be awarded for each violation, for each individual, per predicted

lost earnings in the context of time-served.


Case Summary & Findings 2:

Mr. Corrigan et. al v. Printing Company B

The claimants in this case approached the court with a general claim of preventative action

concerning Health & Safety concerns as outlined by the Health & Safety at Work Act (1974:

and its corollaries). The claimants, upon clarification, stated that the claim was taken

eventually as an alternative to internal redundancy policy procedures, citing issues of lack

of trust and a culture of implicit threats when grievances were voiced, thereby determining

circumstances for a relevant third party perspective to intervene. For the purposes of the

court the claimants outlined that they had grievances with the following perceived

violations of the Health & Safety at Work Act (1974): (i) Lack of onsite supervision by line-

managers and foreman stewardship, (ii) lack of consistent and regular communication with

the production team, (iii) lack of training to use heavy machinery, (iv) lack of heavy

machinery maintenance, (iv) job replacements while training pending, (v) staff burnout

requiring medicated assistance, (vi) being overworked in violation of the working time

directive, and (vii) hostile and therefore unsafe working conditions more generally. Upon

investigation the court found that several of the claims made were unfounded, or

unjustified at this time, for example, given the no accident claims record of the company to

date. That said, the following company procedures were found either not to be in place, or

systematically not enforced within the existing management framework of the company,

to ensure safe systems of work and a safe workplace: (i) lack of daily supervision by

designated line-managers to manage the day-to-day operating system procedures of the

industry setting and (ii) lack of consistent feedback to provide a communication channel

between employees and administrative policy and procedure resources, which ought to be

systematically available within a company infrastructure model, (iii) lack of monitoring and

insistence with regard to heavy machine training, (iv) lack of clarity with regard to health &

safety officers and their whereabouts, (v) lack of consistent and cross-referenced

documentation and familiarity with that documentation as part of the company

administrative procedures (aside: especially given that the company have their own

facilities to produce that documentation). In that light we find that it is not improbable that

this systems ambiguity has created the environmental stress leading to the claimants not

only adding to recent staff attrition rates, but to the sort of medicated stress conditions as

evidenced for Mr. Darby in particular. In that vein we are recommending that voluntary

redundancy package applications are to be set out in accordance with time served and

predicted loss of earnings assessment criteria, in addition to medical compensation to be

added to Mr. Darby’s redundancy package in particular. We are also making a

recommendation for an application to be made to the Health & Safety Executive to conduct

an investigation pending the close of this case.


CONCLUSION: Both cases required the aggregated evidence of all aggrieved parties to be

considered for redress. For example, where no clear evidence of accident and injury had

taken place, but nonetheless distress or anticipated injury were witnessed to be evident,

frameworks of group redundancy tended to be the most suitable option for closure. Where

employment law frameworks of regulation were not adequate for redress, either from an

evidence-based perspective, or due to atypical organizational application of legal norms,

further recommendations for investigation to higher authorities were made.