Advising Carolina Baranowski

The Equality Act 2010 provides a continuum of safeguards that protect the individual and groups of employees. The act contemplates a situation in which every worker should be afforded a fair pay for a job well done without any undue prejudice. As an employee of Tongar UK Ltd, you have a contractual duty to actively contribute to the realization of its objectives without compromising your welfare and need for equality in all respects. Ideally, the compensation you get should commensurate the length of time and amount of work you do comparative to the other employees.

It is necessary for the salaries that you get reflects the enormity of work that you are given. Ideally, your compensation in different forms including, non-discretionary bonuses, allowances, and performance-related benefits. If the difference in duties assigned to you doesnt result in better payment as is the case leading to your frustrations, then it is a clear indication of employment discrimination. Furthermore, it is more than coincidental that you and the other colleague worker are both Polish and are assigned more jobs than the other employees.

Unless there is a reasonable cause for Tongar UK Ltd to debunk a claim of racial discrimination, then it is openly a case of ethnic profiling which falls squarely within the whims of the Equality Act 2010. Even if there was a reasonable cause as purported by the supervisor that you (two polish employees) are hardworking, it would be impossible for him to prove it as a mere coincidence that people from one ethnic background are so diligent leading to unequal allocation of work to them compared to the rest of the employee population. Your case also falls into the provisions of ADEA which provides that it is unlawful for an employerto discriminate against any individual concerning compensation, terms conditions or employment privileges. The Equality Act 2010 provides that it is illegal for the supervisor to assign you duties based on your race and origin (Equality Act, 2010). Therefore, the onus will be on the employer to prove that the different responsibility conferred on you and your fellow Polish employee does not amount to racial profiling. Reasonably, the possible ethnic profiling and unequal treatment at work both amount to corporate liability on the side of Tongar UK Ltd.

Based on the fact that the supervisor has openly acknowledged your exemplary performance leading to more work assigned, you eligible for claiming non-discretionary bonuses, allowances, and other performance-related benefits. In your case, the segregation act manifests in the form of additional tasks. Therefore, the claim, it pertains to the demand for extra payment which will correspond to the level of work. The other liabilities which can be claimed include the compensation for the emotional burden of feeling profiled based one ethnicity as well as other aggravated damages (Equality Act , 2010).

There are various potential remedies for the unfair treatment from the employer which range from the issuance of orders restraining the discriminatory activities propagated by the supervisor to awarding actual monetary retributions for the damages relating to mistreatment and segregation which you have undergone. In your case, various specific issues require compensation. These include lost earnings for extra burden of work assigned, emotional loss due to the feeling of ethnic profiling and the extreme mental challenges associated with burnout of doing the prescribed additional job. The supervisors sheer acceptance of your exemplary skill san competence but without extra payment for the extra duty obviously strained your sense of corporate appreciation which imposed the feeling of oppression. The adverse emotional challenges must be adequately compensated.

The jury that shall preside over your case will have to maintain cognizance of the fact that the Equality Act 2010 prescribes different brackets of discrimination with each having the limits of compensation rates. Their decisions must be strictly be guided by the Equality Act 2010 of course with their sense of intuition and professional experience. Some of the factors which are likely to form subjects of remedy include an award for the injury of feelings which you went through at the firm.

Under the Vento brackets stipulated by the Equality Act 2010, if the judges establish a severe case of discrimination then they will award you compensation between 18,000 and 30,000, between 6,000 and 18,000 for severe discrimination and 500 and 6,000 for less severe claims of discrimination. The Equality Act 2010 provides that in the event of an identified loss of earnings due to discrimination, then the employer has to reinstate such a worker to the situation he or she was in before such a discriminatory act was committed. In this regard, the extra work that you shall have done should be assessed and the value of human capital that would have been needed to process them be determined and such an amount paid to you. An example of such remedies is the case of Michalak v The Mid Yorkshire Hospitals NHS Trust (2011) in which the Employment Tribunal awarded a record-breaking 4.5 million compensation in a claim of sex and race discrimination. Wakefield v HM Land Registry is one of the cases in which the tribunal awarded compensation to the complainant within the category of more severe cases that do not merit an award within the highest band. However, this decision was reversed by the appeal court. Under the 2010 act, you are also eligible for compensation for aggravated damages since the supervisor in acting on behalf of Tongar UK Ltd behaved in a high-handed and oppressive manner by giving so much work to your compared to the other workers.

Restrictive Covenant Clauses at 25.1.1 and 25.1.2

As an employee of Tongar UK Ltd, Carolina committed to protect its corporate objectives and adhere to its guiding principles and regulations to their logical scope. Just like any other business, Tongar UK Ltd has some critical and invaluable information that is critical to its competitiveness or operations hence must protect such through restrictive clauses as evident in Restrictive Covenant Clauses 25.1.1 and 25.1.2. Evidently, the two terms are non-competition covenants since they bar you from associating in any way whatsoever to another similar employment for a Tongar UK Ltd competitor. According to the memorandum that you signed as part of your contractual agreement with the company, you accepted to restrain from any engagement with a competing firm in any way unless with the authority of Tongar UK Ltd. In essence, this implies that you agreed that Tongar UK Ltd assumed control of your transferability from one employment to the next.

As a business, it anticipated that after termination of the contract then Carolina may contribute to the increased competition from other firms. Therefore, it developed a restrictive clause to control her mobility within the first twelve months of contract termination from one employment to the next to which she acceded. By stating that without prior authorization of Tongar UK Ltd directly or indirectly be engaged, interested or concerned whether as principal, agent, representative, partner, director, employee, joint venture, investor, consultant or otherwise in any competing business, the firm inadvertently limited the inter-job transition of Carolina at least within the first year. However, from the analysis of the clause, its application is troublesome since it did not contemplate what would constitute a termination of the contract with the employee. In actual sense, the restrictive clause fell short of anticipating and addressing three possible terminations of employment; the voluntary resignation, forced resignation or end of the contact period. The restriction clause explicitly states that at the completion of contract an employee must not interact with a competing firm, prospective client or actual client within the first 12 months without stipulating what exactly constitutes the completion of a contract. In the absence of a definitive description of the end of contract termination, it would be ordinarily assumed that the clause only applies when the lifetime of a contract term ends. Therefore, if the employee resigns, the provision may not be translated retroactively to apply therein. As provided in the case law, Hansberry et Al. v. Lee et al., the court analyzed that without a prima facie clear explanation of exact situations in which a decree binds a party then it became a res judicata to try to apply it in that regard. Furthermore, without a precedent in which Tongar UK Ltd had prosecuted a case involving its restrictive clause, it becomes uncertain the merits of its applicability. Therefore, the onus will be on the presiding jury to demarcate the scope of the provision. As litigated in Hansberry et Al. v. Lee et al., a restrictive clause doe not only apply if it purports to impose a joint or singular liability on the signers, but its scope must also be clear. Without such clarity on different aspects that define the Tongar UK Ltd restrictive clause, it remains not only superfluous but too burdensome to implement.

Advise to Tongar UK Ltd whether it can rely on the restrictive covenants in Carolinas contract to limit he employability

It is perceivable that the company sets its policies in its best corporate interest. Therefore, the restrictive covenants in Carolinas agreement is a manifestation of advancement of such benefits. From the outset, the restrictive clause being a document of the company must have been drafted to protect its critical information which implies that it meant to either reduce the turnover of employees or minimize the potential of competitors using its employees to leak essential operational strategies. While this could be true, the clause falls short of stated clarity hence limits its enforcement. For instance, the mere fact that Carolina signed the document does not mean that she subscribed entirely to its letter and spirit. One glaring ineffectiveness of the clause is that fact that it does not explicitly demarcate when Post-termination begins. Conceptually, post-termination can start when the employee resigns, complete the contractual term of forced by circumstances to abandon duty.

In the case at hand, Carolina resigned since Tongar UK Ltd failed to do anything in addressing her grievances. This is only one possible definition of the end of tenure but cannot be defensibly applied since such is not explicitly stated in the clause. In principle, legally binding documents exist both as letters and spirit. In the case of a controversy leading to a lawsuit, the note of the material takes precedence over its spirit. This understanding draws from the fact that the judges are only able to interpret the wording of the clause but not the contemplations of its drafters. Therefore, while the drafters could have meant that termination means the end of work at the business, they failed to state whether resignation constitutes completion. It is the responsibility of the company to fully disclose to its employees what its regulations mean before presenting them for signing. Therefore, if it did not do so when Carolina was first entering into the contract then it automatically transfers the responsibility of determining the scope of its restrictive clause on the judges. However, in advancing its case, Tongar UK Ltd can concentrate on convincing the courts that the mere absence of breakdowns on what termination means does not undermine what the term means which is end. What occasions the end thus becomes far-fetched in light of the clause.

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