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Demands for Fairness and Legal Certainty

Info: 5397 words (22 pages) Law Essay
Published: 8th Aug 2019

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Jurisdiction(s): UK Law

Employees’ rights at work depend on mainly two things, the contract of employment and the statutory rights.

The Contract of Employment:

The employment contract is the default document which guarantees employment rights for the employees. It defines employees’ rights by law and does not apply on. For instance in some cases, an employment contract is assigned to employees in which paid leave are granted for 28 days per annum. However according to law, employees are granted 28 days paid leave so this part of the employment contract cannot be applied to the employees. The law which is already present, regarding paid leaves, will be applied first in case of discrepancies with the contract of employment. However in cases where contract of employment offers greater number of paid leaves like six weeks, then in that case, the employment contract number of weeks will be applied to the employees. [1] Special rules are also defined for children and young workers in their respective employment contracts. A written contract of employment is every workers basic right which determines the nature of employment, tenure, wage and working hours. In short, this contract contains all the terms and conditions required for a particular job. [2]

Statutory Rights:

Statutory laws are legal procedures set forward for granting employment rights to employees which are passed by the government. Almost all the working sectors, irrespective of their working hours and nature of employment have defined legal rights by the parliament. However, there are some workers who are not eligible for the statutory rights. In some cases, an employee becomes eligible for a right when he or she has been employed for a certain period of time by the employer. Generally this length of time is mentioned in the contract of employment given to these employees. [3]

Workers Ineligible for Statutory Rights:

There are some workers who do not qualify for the statutory laws provided by the parliament. They are mentioned as follows:

A person who is not employed cannot be eligible for the statutory rights. This includes an agency or a freelance worker working on short-term basis. However, most of the workers are eligible for rights such as minimum wage, good environment conditions of the workplace, timely payment of salaries and limited working hours etc. [4]

Those employees who work outside UK are also granted statutory rights, Members of police department and those who belong to the armed forces also face different terms and conditions of employment as compared to other employees. However, people belonging to these sectors are given special consideration in the discrimination law [5] . Merchants, seamen and fishermen re also included in this list. Similarly the transport industry is also very sensitive to employees’ rights and many workers are not entitled to holidays and limited working hours. Moreover, the specification of the employees in the transport sector is not provided in the statutory law so the employees of this industry have to rely on the contract of employment [6] . In the medical sector, the trainee doctors also have to depend on the contract of employment assigned to them and they are not eligible for the paid holidays. The working hours of these training doctors are also fixes for a minimum of 58 hours a week as compared to the regular 48 hours [7] .

Rights under the Employment Contract:

The Contract of employment is an agreement between the two parties, the employer and the employee, regarding the employment. This can be a written or a verbal agreement between the two parties. The contract of employment also includes practice agreements. This makes an employee aware of how things are done at the workplace [8] . For example it can be a custom at a workplace that employees are given a day off in the month of August. This may not be mentioned in the employment contract but can be assumed as a common practice for the employees. [9] Trade Unions also play a vital role in the designing of the contract of employment. Negotiations can be achieved between the labour union and the employer regarding the work conditions. These negotiations are included in the contract of employment upon mutual consensus if the terms are more beneficial for the employees at work. [10]

In the case of Clarkson v Pensher Security Doors Ltd [2009] showed that there was a liability on both of the participating parties. It was revealed that Clarkson was neither an employee nor worker and he had been providing services for the company for some time. Since he worked on the contract basis, he accepted that is not an employee o the company.

The mutual trust and confidence in both parties play a vital role in designing of employment contract. The clauses written in this contract should be in the knowledge of both parties and any amendment should also be made upon mutual consensus. The employment contract binds the relationship between the employer and the employee and it is mandatory for both the parties to respect it. [11]

In Massey v Crown life insurance [12] case is a perfect example for such incidents. Mr. Massey was dismissed under the Trade union and Labour Relations Act 1974. Mr. Massey filed a law suit and the court gave its verdict that Mr. Massey is not under the contract of service with the alleged company so therefore his employment cannot be restored. In the matter of abiding the employment contracts, the intention of partnership in both parties is of utmost importance. [13] Ms.Robertson used to work for several agencies for Wood Group for several years. In July 2005, the Wood group employed Ms.Robertson and dismissed after 9 months period. Ms.Robertson filed case against the company but the court did not find any evidence of several years’ employment. It is therefore necessary that terms of the contract should be written and explicable [14] . Similarly in the case of Autoclenz limited v Belcher & others (2009). The judge gave the decision that a written contract did not exit. An appeal filed by Auoclenz limited was also turned down and it was revealed that Derbyshire were not the company’s employees but they were workers according to the Employment rights act 1996. [15]

3.0 Written Statement of Employment Terms and Conditions:

The Employment written terms and conditions are very crucial for the employees. Irrespective of the nature of employment and the number of hours employees spend at their workplace, they are entitled to receive a written employment letter or contract from the employer. The employment contract is issued in a period of two months after starting the work. The employment letter or contract describes the main features of the employment. This contact must contain information about the following things:

Job title/description

Salary or wages

Working hours per week

Number of paid leaves

Compensation in case of medical leave

Pension policies

Employment termination and disciplinary procedures

Other important notices [16]

Employee Status:

It is fundamental to statutory and common law employment law to recognize that who is an employee and who is an independent contractor [17] . The difference between employed and self employed is still a central issue in Employment law, moreover there is no certain definition of employee status, it has, therefore left to courts and tribunals to rule on the distinction in individual cases, guided by the common law concepts such as the contract of service and contract for services [18] . However, the employee status under section 230 in the Employment Rights Act has defined the terms for employees and employers. According to this section, an employee is a person who enters or works under the employment contract. As such in Catamaran Cruisers Ltd v Williams [19] was established that a person may qualify as an employee even though he renders his service through the medium of a limited company [20] . Similarly an employer is a person who has hired a person for employment. Both of these parties have their rights and duties described by the law and certain immunities also granted by the law. The case of Delfino v. Agilent Technologies, Inc. in 2006 is worth noting in this regard. An employee at Agilent Technologies, Inc was caught in sending messages and emails to Delfino and Day who filed a complaint against the company. The court investigated the matter and found that the employee’ Moore’ was sole responsible for it and the company’s information system was meant for professional usage only. [21]

As such in Lane v Shire Roofing Co Ltd [22] , the plaintiff was a roofer and traded as a one-man business and was categorized as self-employed for tax purposes, in 1986, he was hired by the defendants, a newly established roofing business, who did not want to take on direct labour and so employed the plaintiff on a payment on a job basis. During re-roofing a porch of a house, he fell off a ladder suffering serious injuries. The question in this case was whether the defendants owed the plaintiff a duty of care, as an employee, they clearly did but as self-employed, however the duty was much reduced. It was held that the defendants were not liable for injuries as the plaintiff is working on as an independent contractor but not as an employee; however the court of appeal allowed and awarded the damages [23] .

The common law tests of employee status is theoretically similar for multiplicity of purposes, however the considerations behind a decision under each heading is rather different as such in Health Authority [24] where the applicant was a ‘bank nurse and she was under a global contract of employment. However, she was offered work as and when required, with no obligation on either side to provide to work or to work. She worked for 3 years with a gap of four and a half months. It was held that she was not an employee as such there was no mutuality of obligation since she could refuse if she wanted [25] . Similarly in Wilson v Circular Distributors Ltd [26] , it was held that it is not necessary for the accepted employer to be under any obligation to provide work, moreover it is the absence of mutual obligations which is crucial as per the EAT [27] .

Control test

The control test served the purpose of differentiating the servant from an agent, who similarly can choose exactly how he goes about the tasks given to him by his principal. Thus, a domestic servant is an employee and a blacksmith is an independent contractor [28] .

Here the question arises the degree of control in the cases of multiple monitoring organizations for example you may have a multi employer site, such as in the case of construction of airport where it is agreed between the different contractors that their various employees under the direct control of one organization, maybe the client with regards to giving certain instructions to employees, monitoring the standard of work, discipline etc. but the things goes wrong such as dismissal, discrimination issues then it becomes essential to describe that who is in law is the employer of which he employees [29] . However the more control over the employee is likely to be an employee and less control are likely to be a self-employee.

4.0 Provision of Flexible Working Hours:

In England, Wales and Scotland, the law has provided certain facilities to the parents or guardians for the care of underage children, disabled child or an adult. The parents or guardians who have above mentioned responsibilities have the right to ask their employers for flexible working hours. [30] The employer can consider the application of such employees if he has been working for the company for a minimum period of 26 weeks. In the areas of Northern Ireland, flexible working is a right of those employees who have a child under 6 or a disabled child under 18. [31] There are many ways in which employers can arrange the working flexibility for these employees. This include part time working, working during the school hours of children, alternation of shift, through compressed and staggering hours. In many cases, flexible working conditions are not easy to achieve. Employers generally complain about the low productivity and poor performance of the employee who seek flexible working. However, the employer should be given a serious consideration for the approval of flexible working conditions or hours. [32]

5.0 Health and Safety at Workplace:

In statutory law, it is the responsibility of the employer to look after the health and safety measures of the employees. For instance, the workplace should have a first aid box, specials arrangement in case of fire breakage and the employers should ensure that all the equipment and machinery is safe for usage. Moreover, the main safety responsibilities of an employer are in the following areas:

Fire safety

Workplace Cleanliness

Control on noise pollution

Safe machineries

Safety measures while dealing with heavy weights

Prohibition of hazardous materials

Washing and toilet facilities

Availability of clean drinking water

Proper seating arrangement

First aid facility

Controlled temperature

Limited working hours [33]

5.2 Employees Working Hours:

According to the employment law, all workers have the right to work 48 hours a week on maximum. Night shift workers also cannot work more than 8 hours a day. By law, adult workers, who are above 18, are eligible for one day off every week. Adolescent workers, those who are below 18, are entitled to two non working days every week. [34] For adults, eleven consecutive hours are essential for rest in a day and a mid-break of 20 minutes if the working period is of more than 6 hours. Young employees or workers are given 12 hours rest everyday and are eligible for a 30 minutes break if they work for more than four hours. Unhealthy activities like smoking and drugs, etc are banned at workplace according to the employment law in order to ensure a safe and healthy working environment for the employees. [35]

6.0 Equality and Discrimination in Employment:

The employment describes that a person at workplace is subject to discrimination or unfair treatment due to his or her:





religion or belief

Nationality [36]

6.1 Indirect and Direct Discrimination:

Discrimination phenomenon can be observed directly or indirectly. Direct discrimination is observed when an employee is treated in a negative or a degraded manner due to his her race, gender, religion or any other factor. For instance if an Asian employee is not promoted to a senior management positioning in a European firm, then that person is a target of a direct racial discrimination. [37]

Indirect discrimination is observed in cases when an employee cannot meet the requirements of a particular task which is not reasonable in terms of work and as a result, face negative attitude of the employer. For instance if an employer provides training to only those employees who work fulltime, this will be recorded as an indirect discrimination against women since majority of the working women are part-time workers.

6.2 Approaches to Inequality:

Harassment at workplace is also a form of inequality and discrimination. Harassment comprise of verbal abuse to employees, evocative remarks and unwanted body contact. Moreover employees who raise voices about discrimination and harassment also face negative consequences in some cases. [38]

6.2.1 Discrimination on the basis of Sexuality:

According to the statutory law, it is unlawful for an employer to discriminate any employee on the basis of sexuality. This means that an employer and workplace operations must not be affected if an employee is gay, lesbian bisexual or heterosexual. Every person’s sexuality is protected under the employment law and no employer is authorised to discriminate anyone on this basis. [39] If an employee believed that he or she has been discriminated on the grounds of sexuality, he or she must seek expert legal advice as soon as possible. There is a predefined three months time period for taking legal action in these cases. In some firms, women are also facing similar problems. The employers of such firms tend to pay female workers less than male employees due to stereotypes that women are less productive than men. Women who feel that they are being discriminated on these grounds have every right to raise their voice for the provision of their equal pay rights. [40]

6.2.3 Discrimination on the Grounds of Religion:

Discrimination against any employee on the grounds of religion is also prohibited in law. Religion or a belief generally indicates following any particular religion, religious or philosophical belief. Religious beliefs are different from the political beliefs ad should be separated from one another.

The employment law also provide protection to the employees from the religious discrimination and encourage seeking legal advice in such cases. [41]

6.2.4 Discrimination on the basis of age:

Employment tribunal register cases in which employees are discriminated on the grounds of age. Discrimination at workplace due to age is prohibited by the law in the same way as other discriminating are. However, the employer has the right to make an employee retire at the normal retirement age which is 65. [42]

The symmetric approach is generally practiced in UK. It means that the basic grounds of discrimination are gender and race. Substantive approach on the other hand is more preferred by people and it involves analysis of a change in the workplace environment. If the change is not justifiable the immediate actions are taken on it. Due to substantive approach in the employment, complaints of indirect discrimination have considerably reduced since past few years. [43]

6.3 Inequality Cases:

Amnesty International v Ahmed [44] was a prominent case of employment discrimination. Ms. Ahmed was refused a promotion as an Amnesty Sudani researcher and she filed a lawsuit against race discrimination. The claim for discrimination failed before the court. Another important case was of Pearce v Mayfield Secondary School [45] . Pearce was lesbian who filed a compliant in court for being harassed by pupils on gender basis. The court strongly condemned the sexual harassment Pearce faced in the school but since the pupils could not be proven agents so the school was not liable [46] .

Similarly in the case of James v London Borough & Greenwich [47] , the decision taken by the court was that a worker who is supplied by an agency must be treated as an employee based upon the contract of employment. Since in this case, there was an employment contact so the employee must be treated according to that no matter where he came from. [48]

7.0 Termination of an Employee:

If an employer decides to terminate an employee, then it is the legal right of an employee to have a period of notice before termination. In some employment contracts, employees are granted extra rights of notice. The employment contract will always include a termination policy and notice period. If an employment contract does not give information about the minimum amount of notice, an employee is till entitled for a suitable notice. [49]

Common law notice

The length of notice is usually expressly agreed between the parties and in this case it should be stated in the written particulars of employment. If not the common law will imply a reasonable notice depending on the conditions of the particular employment. As such in the case of Grundy v Sun Printing and Publishing Association [50] , it was held that a year is reasonable notice. Similarly in Adams v Union Cinemas Ltd [51] held that six months notice are reasonable for a manager. In the case of Nicoll v Falcon Airways Ltd [52] , the court held that an airline pilot is entitled to three months reasonable notice period [53] .

Statutory Minimum notice

According to the Employment Rights Act 1996, sections 86 and 87 states the statutory rule is that the employer must give one week’s notice who has worked between one month and two years and thereafter one week for each year and up to a maximum of twelve weeks he has worked. However the employee in return must give one week notice in case of resignation if employed for more than one month. As such in Trotter v Forth Ports Authority [54] , the court held that where the right to waive notice is exercised, the right to payment in lieu is lost. In spite the fact that there is nothing in section 86(3) expressly to this effect, this would appear to be consistent with viewing payments in lieu as damages for breach of contract, for where the notice is waived, there is no breach of contract [55] .

In order to terminate or dismiss an employee, proper dismissal procedure should be followed by every employee. Before dismissing any employee there are following steps or procedures which should be accomplished:

A written statement should be delivered to the employee stating the reason of termination and schedule a meeting to discuss the matter.

An appeal meeting should be arranged by the employer in order to resolve any miscommunication or grievances if possible [56]

After the appeal meeting, the employer should decide about the termination or restoration of the employee. The employee should be made aware of the decision taken as soon as possible. If the employer is still in favour of the dismissal of the employee, then he must tell the employee when he should tell the employee when the decision will take effect. The employer should also make clear that how much notice the employee should just expect. It is not necessary for an employer to inform the above facts in writing but it is appreciated if a written statement is issued to the employee. The notice of dismissal should be given by the employer directly to the employee and must not involve any third party in it, for example the employee’s trade union. This may make the situation complicated in future and legal actions may be taken on that. [57]

The employee has every right to challenge the decision taken by the employer regarding his dismissals and may take the case to the employment tribunal. Before going to the employment tribunal, it is important for the employee to follow the disciplinary and dismissal procedure in order to fully qualify for a court appeal. Otherwise some legal action may be taken for not following defined procedures. Moreover, if an employee is dismissed at the age of 65 or above, the rules regarding notice of termination are changed as compared to the younger employees. [58] If an employer has dismissed his employee without any notice, then the employer is responsible for paying the employee in lieu of notice. The only condition in which the employee is not provided with notice and not paid in lieu of notice is a case of gross misconduct. The amount of pay in lieu is decided by how much notice was required for an employee.

The main admissible reasons for dismissing an employee are the incapability of the employee to perform professional task and improper conduct at the workplace. Another important reason for dismissal of employees is the redundancy. If the business is going down and the employer decides to relocate or shut down the business, the number of employees in the company has to be reduced. [59] In most of the cases, the employer interest and managerial processes are given priorities in law but in the past few years there have been considerable emphasis on the protection against unfair dismissal of employees. Elder employees and employees of the lower management level are the focus of providing this protection. Many trade union and other bodies are also working in this regard. Moreover the inadmissible reasons for dismissal are:

Being pregnant

Participating in trade union activities

Being a member of pension scheme, etc. [60]

7.1 Remedies for Unfair Dismissal:

There are three possible remedies available to the employee in case of unfair dismissal such as reinstatement, re-engagement and compensation. However the employment tribunal must consider the remedies in that order, that is, reinstatement must be the primary remedy. Moreover the remedies are not cumulative. The successful claimant receives only one but not two remedies. As per section 112(2) of the Employment Rights Act 1996, the tribunal has the duty to explain the re-instatement and re-engagement means and even in case the applicant is legally represented, it should ask whether the applicant wishes the tribunal to order one of these remedies. However, sometimes the reinstatement and re-engagement called re-employment [

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