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Published: Fri, 02 Feb 2018
1.. Read and analyze information concerning British labour law and Czech labour law on the server of International Labour Organisation, choose reasonable criteria for comparaison and compare selected aspects of British and Czech labour legislation (around 2 pages double spaced).
Read carefully enclosed two judgements issued by Employment Appeal Tribunal and try to answer following questions (each judgement around 2 pages double spaced):
1. What was the nature of the original dispute (facts)?
2. Compare and assess decisions of all legal institutions involved in the case.
3. Debates related to both of these judgements are centred around notion of discrimination. In both cases comment upon nature of discrimination (for better understanding explore chapter in the reader dedicated to issues of discrimination).
[British and Czech labour law with aspect of Notice of Dismissal]
British Labour Law
British labour law is law which regulates the rights, restrictions obligations of trade unions, workers and employers in the United Kingdom.
During 19th century the employment contract was based on the Master and Servant Act of 1823. Labour Law in the United Kingdom has developed rapidly over the past forty years, due to a historically strong Trades Union movement and to the United Kingdom’s membership of the European Union.
Leading Employment Law Statutes include the Employment Rights Act 1996, the Employment Act 2002 and various legislative provisions outlawing discrimination on the grounds of sex, race, disability, sexual orientation, religion and age from 2006.
Notice of Dismissal:
Under British Labourl law an employer can dismiss his employee at any time; also a period of notice must be given. However, employees with sufficient continuity of service, have the right not to be ‘unfairly’dismissed. In such cases a dismissal will only be lawful if it is for a fair reason and the employer has acted reasonably in all the circumstances which usually involves following certain procedure. The following examines the levels of notice which must be given and the reasons for dismissal which are legally considered to be fair.
The minimum levels of notice which an employer must normally give to an employee are laid down in the Employment Rights Act 1996 and depend upon the length of time the employee has been continuously employed. However, if an employee is guilty of serious misconduct the employer may be justified in instantly dismissing the employee without any period of notice at all.
A fair dismissal involves two criteria both of which must be satisfied.
Firstly, the dismissal must be for one of the following reasons: the employee is unable or unqualified to do the job in hand, the employee’s conduct is unsatisfactory, and the employee is legally prevented from continuing to carry out their job and some other substantial reason.
Secondly, the employer must act reasonably in all the circumstances in deciding to dismiss the employee.
A dismissal will also be automatically unfair in the case of an employee who has at least one year’s continuous employment if the employer has failed to follow the statutory procedures for disciplinary matters. In such cases the normal award of compensation to the employee by a Tribunal can be increased by as much as 50%.
If an Employment Tribunal decides that a dismissal is unfair it may order the employer to re-employ the employee or to pay the employee compensation. The amount of compensation consists of a basic award calculated in a similar manner to a redundancy payment, and a compensatory award based on the employee’s loss, which can be well in excess of £50,000.
Czech Labour Law
To prepare the accession of the Czech Republic to the EU, new provisions were adopted by the amendment on the Labour Code in the year 2000 (Act No.155/2000 Coll.), which improved labour legislation, including the introduction of new legal instruments.
Notice of Dismissal:
The period of notice is two months. The Labour Code contains a number of restrictions where the employment relationship is terminated at the employer’s initiative. These restrictions are designed to protect employees against unfounded and arbitrary acts, to protect stability of employment relationship and to enhance the employee’s legal and social security. The reason for dismissal must be clearly stated. Another condition which has to be met is that the notice must always be made in writing and must be delivered to the employee’s own hands.
On the one hand, there are organizational grounds. This is the case where the company or parts thereof cease to exist or are transferred elsewhere, or where organizational changes take place, for example the change of equipment. Another valid reason is the reduction of the number of employees in order to improve productivity.
Other grounds for dismissal are directly concerned with the employee: his or her state of health prevents him or her from performing the agreed job, or the prerequisites for the performance of the job are not fulfilled. In case of non-satisfactory performance, the notice of dismissal can be served only if the employer has noticed the employee concerned in writing in connection with his or her poor performance within the past six months.
However, the prohibition of dismissal in these cases is not absolute and does not cover events where the company ceases to exist in whole or in part, or where activities are transferred to another place. In these cases there are objective grounds making it impossible for the employer to fulfill obligations ensuing from the contract of employment, and notice of dismissal is possible even in these circumstances.
GMB v. Mrs S Allen & Others
The case is very important form the view of public because the allegation being made by Chris Quinn on behalf of the Claimants was that their trade union had failed to fulfill its duties to them as female members with regard to their right to receive equal pay from the local authority employer for many years. This acting had indirectly discriminated those female as employee.
Employment Tribunal [ET]- 2006
The decision, upholding the Claimants’ complaint that the GMB had both indirectly discriminated against these female members on the ground of their sex and had also victimized them for bringing discrimination claims against the local authority employer independently of the GMB has sent shock waves through the trade union movement. The effect of the decision country-wide could hardly be over-stated as it could start a trend in which any female trade union member who was advised by her union to settle her claim to equal pay following the non-implementation of the Single Status Agreement reached in 1997 could now seek to recover from it the difference between the true value of her claim and the amount that the union advised her to settle for.
Employment Appeal Tribunal [EAT] – 2007
GMB had encouraged its members to agree a settlement agreement which seriously undervalued the women’s claims. The tribunal found this was indirectly discriminatory by the union, and it was believed that the GMB would be liable to pay in excess in compensation.
The EAT has overturned this decision. Notwithstanding criticisms of the GMB’s method of obtaining the Claimants’ consent to the undervalued settlements, it held that settlement of the claims was a legitimate aim and the means adopted were proportionate.
3. The women claimed that the union’s prioritisation of pay protection and future pay over compensation for past inequalities was discriminatory, either directly or indirectly or by way of victimisation. The employment tribunal rejected the claim for direct discrimination and allowed the claims of indirect discrimination and victimisation. The tribunal found that the deal, having been potentially indirectly discriminatory in that the group disadvantaged by it were predominantly women, was not justified because of matters of concern regarding the union’s approach to the deal. The union successfully appealed the tribunal’s findings of victimisation and indirect discrimination to the Employment Appeal Tribunal where it was found that the indirect discrimination in the form of the deal struck was justified. Permission was granted to appeal that issue to the Court of Appeal.
Mr A Smith v. Network Rail Infrastructure Ltd
Mr Smith was a track maintenance worker. After a series of strokes he was left partially sighted.It was held that Network Rail was wrong to conclude that Mr Smith should try and find a new position first and only then offer him re-training for that position. Employers who are considering alternative positions for less abled employees should offer basic training before the job vacancies arise, say in IT, so the employee would be fit for office based vacancies as and when they arose.
Employment Tribunal [ET] – 2006
Mr A Smith, the Claimant, as appeal against the decision of the Employment Tribunal at Manchester that the Respondent did not discriminate against him under the Disability Discrimination Act 1995. HHJ Clark referred the matter to a full hearing on 17 January of this year.
Employment Appeal Tribunal [EAT] – 2007
The EAT has remitted this case for rehearing before a fresh Employment Tribunal. Mr Smith lost a disability discrimination claim at the Manchester employment tribunal. He appealed to the EAT because in deciding against him the tribunal had (i) held that it could not consider failures by the employer after the date on which he had lodged his grievance notwithstanding that they were continuing examples of what the grievance complained of and (ii) refused to consider whether appropriate training could have been a reasonable adjustment. The EAT has allowed his appeal and remitted the case for rehearing.
The EAT said that one grievance letter was sufficient to cover an employer’s continuing failure to make reasonable adjustments for Mr Smith’s disability. The Tribunal had jurisdiction to consider the acts and omissions of the employer after the date of the initial grievance letter where Mr Smith’s complaint was essentially the same as before. The EAT also considered the date on which the employer’s duty to make reasonable adjustments was triggered in a situation where it was clear in view of the employee’s disability that he would never be able to return to his original job.
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