The main focus of this essay will be on modern Employment Law in England and Wales starting first by giving an insight into the background of the formation of the law and then moving towards defining who an employee is and then the aims and objectives of the modern employment law with main focus on discrimination and unfair dismissal and then finishing off with certain remedies available.
The law governing employers and employees goes back a long way but the modern approach was brought about by the 1799 and 1800 Combination Acts. The Combination Act 1800 abolished the ban imposed by the Combination Act 1799 on individuals that work in particular industries. The Combination Act 1800 endorsed two more conditions:
- Agreeing to go into a contract for purposes of developing employment conditions
- Persuading an employee not to work with another employer
The Master and Servant Act 1823 was also used by employers to punish workers. The law has been changed several times going from Masters and Servants Act 1867 to the Trade Union Act 1871 then to the Donovan Report in the 1960’s where employment protection was spread on a wider scale so as to be of benefit to the workers not just the employees. It made provision for tribunals and the Redundancy Payment Act in 1965 which makes provision for compensation in cases where dismissal is involved. In 1970, with the coming of the conservative to power, there was the passing of the Industrial Act 1971. The Industrial Act 1971 sets up specific functions:
- It controlled the closed shop by outlawing any obligation of trade union membership as a condition for job applicants
- That employees not be excluded or expelled from a union by arbitrary or unreasonable discrimination
- Established National Industrial Relations Court (NIRC) as a specialist branch
- Gave power to the commission on Industrial Relations to investigate where no procedure existed
- Introduced right not to be unfairly dismissed
The Equal Pay Act along with Sex Discrimination Act was enacted in 1976 by the Labour government. The Race Relations Act 1976 made it possible for individual workers to complain directly to tribunals. The conservative government passed the Employment Act 1982. The Blair government enacted the Public Disclosure Act, Data Protection Act and National Minimum Wage Act in 1998. An amendment was made by the Employment Act 2002 where a change was made to the law on family rights and paternity leave. The Employment Relations Act 1999 was replaced by the Employment Relations Act 2004 and the 2008 Employment Act was enacted by Gordon Brown.
Who Is An Employee?
According to the Employment Rights Act 1996, an employee is ‘an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.’ S. 230 (5) of the Employment Right Act 1996 also defines employment as ‘an employment under a contract of employment’ and a contract of employment under s. 230 (2) is defined as ‘a contract or service or apprentice, whether express or implied (and if it is express if it is written or orally stated’. However, in the case of Catamaran cruisers Ltd v Williams, it was held that an individual can qualify as an employee even if the service provided was through a limited company.
Aims And Objectives
Modern employment law seeks to achieve several objectives some of which include discrimination at the work place and unfair dismissal from work.
The Race Relations Act 1976 together with the Sex Discrimination Act 1975 have sidelined an action to be discriminative (regardless of whether in employment or not) if it falls under race, sex, marital status or ethnicity. Discrimination occurs when ‘one person treats another less favourably on the grounds of sex, marital status, or racial grounds than he treats or would treat a person of another sex, marital status or race. In Shamoon v Chief Constable of Royal Ulster Constabulary, a complaint was made to the traffic branch about the manner in which chief inspector Shamoon conducted appraisals. The right to carry out appraisals was taken away and Shamoon claimed on discriminative grounds to which Lord Hope held ‘a comparison of the cases of persons of a different sex… must therefore be such that all the circumstances which are relevant to the way they were treated in the one case are the same or not materially different in the other’.
Discrimination on the grounds of sex
Sex Discrimination Act applies to discrimination acts against both men and women. Treating a woman unfavourably on the basis of her being pregnant was regarded to be sex discrimination.
Discrimination on grounds of marital status
The Sex Discrimination Act applies to discrimination against married persons in employment, claims cannot however be made by single persons.
Remedies To Discrimination
In a situation where the tribunal is in support of the complaint, there are three kinds of remedies are granted.
- Declaration of Rights of parties- s.65(1)(b) SDA 1975
- Through a recommendation which is not an order but a request asking an employer to act in a specified manner. Failure to comply without proper validation may lead to the tribunal increasing compensation
- Compensation: there is no limit on compensation for sex or race discrimination. The same measure of compensation as used in cases of tort is adopted.
‘An employee shall have the right not to be unfairly dismissed by his employer.’ In W Devis & sons Ltd v Atkins, an employee was dismissed because he refused to act in accordance with his employer’s wishes. In the case, Phillips J stated: ‘The expression unfair dismissal is in no sense a common sense expression capable of being understood by the man in the street.’
There are four stages to unfair dismissal:
- If dismissal has taken place under s.95 of Employments Rights Act 1996
- If the applicant is entitled to claim (taking into consideration excluded persons s.192-200 ERA 1996)
- Was the dismissal fair? S.98-100 Employments Rights Act 1996
- What the available remedies are
In a situation where unfair dismissal is proved, three remedies are available: reinstatement, re-engagement and compensation.
This is an order that states ‘that the employer shall treat the complaint in all respects as if he had not been dismissed.’ A reinstatement will be void if the employee is reinstated to a less favourable condition as he was before.
This is an order that the employer reinstates the employee although this does not necessarily mean that the employee will be returned to the same position but the job must however be comparable and suitable and so far as is reasonably practicable as favourable as the previous position. Failure to act in accordance with the order granted will lead to the tribunal making an increase in the compensation to be awarded.
Compensation in unfair dismissal is categorised into basic award (s.119 (2) Employment Rights Act 1996) and Compensatory award) s.123 (1) Employment Rights Act 1996). Under s.118 of the Act, the compensation awarded (whether basic or complementary) can be reduced if contributory fault can be proved.
Without legislation and laws to govern what happens at the work place today, employees would be left open to hostile and unfair treatments by the employers and so also, employers would be left unaided on how to control employees that take advantage of situations. Most of the laws with regards to employment are set up in order to protect and be of benefit to both employers and employees without one taking advantage of the other. With the introduction of the Employment Rights Act, Sex Discrimination Act and Race Relations Act, there is a reduced rate on racial discriminations in the work place. For example, where before the relevant laws were imposed it an employer can get rid of any employee he wants to, with such laws in place, it becomes more harder for an employer to just get rid of any employee and get away with that without consequences.
Bowers, J. A Practical Approach to Employment Law, (Oxford University Press, 2008, 8th edition)
Honeyball, S. Textbook on Employment Law, (Oxford University Press, 2008, 10th edition)
Kidner, R. Blackstone’s Statutes on Employment Law, (Oxford University Press, 2009, 19th edition)
Painter, R.W & Holmes, A. Cases and Materials on Employment Law, (Oxford University Press, 2008, 7th edition)
Pitt, G. Cases and Materials on Employment Law, (Pearson Longman, 2008, 3rd edition)
Pitt, G. Employment Law, (Sweet & Maxwell, 2009, 7th edition)
Smith, I. & Thomas, G. Smith’s & Woods Employment Law, (Oxford University Press, 2008, 9th edition)
Willey, B. Employment Law in Context, (Pearson Longman, 2009, 3rd edition)
Combination Acts 1799
Combination Acts 1800
Master and Servant Act 1823
Master and Servant Act 1867
Trade Union Act 1871
Redundancy Payment Act 1965
Industrial Act 1971
Sex Discrimination Act 1975
Race Relations Act 1976
Employment Act 1982
Employment Relations Act 2004
Employments Right Act 1996
List Of Cases
Catamaran cruisers Ltd v Williams (1994) IRLR 386
Shamoon v Chief Constable of the Royal Ulster Constabulary (2003) IRLR 286
Webb v EMO Air Cargo (UK) Ltd (1994) IRLR 482 ECJ
Bick v Royal West of England School for the Deaf (1976) IRLR 326
W Devis & sons Ltd v Atkins (1977) AC 931 HL
Artisan Press v Strawley & Parker (1986) IRLR 126
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