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Published: Fri, 02 Feb 2018
The Employment Rights Acts
Legal certainty comes with a continuous process of the updating of laws by means of notifications, regulations, amendments and precedents. Likewise, the Employment laws in Britain have acquired a sound fairness, in areas of employee status, contractual terms of employment and unfair dismissal and equality, by virtue of various updates of laws and decision of the courts.
THE EMPLOYMENT LAWS
The major employment laws under discussion are;
The Employment Rights Act 1996  .
The Employment Act 2002  .
The Employment Act 2008  .
THE EMPLOYMENT RIGHTS ACT 1996
The fairness of the Employment Act 1996 can be gauged by the fact that the said Act covers major aspects of relations under employment including particulars of employment, leaves, study or training and termination. The Act also provides protection of wages and payments. Furthermore, the remedial process in case of unfair dismissal is also covered by the Act under discussion. Thus, it has resulted as a major step to bring in fairness and legal certainty to the employment law.
THE EMPLOYMENT ACT 2002
The Employment Act 2002 introduced new standards of disciplinary procedures for the employers. The discrimination between the employees on fixed term contracts and permanent employees was eradicated through the said Act. Reforms were also made to the number of various leaves available to the employees. Various legal procedures were reformed through the Employment Act 2002 to bring in a visible fairness to the employment relations, (Guidance on Employment Act 2002)  .
THE EMPLOYMENT ACT 2008
The Employment Act 2008, enacted on 13th November 2008, reflects through preamble its focus upon ‘the procedure for the resolution of employment disputes’ (Preamble of the Employment Act 2008). It covers compensation for underpayment and enforcement of minimum wages. The employment agencies and trade unions have also been covered by the Employment Act 2008. The subjects covered under the Act display a clear intention to bring in fairness within the employment laws and maintain a legal certainty as various ambiguous aspects have been removed through the Act under discussion.
STATUS OF AN EMPLOYEE
As soon as a person acquires the status of an employee, he is equipped with various rights against his employer. Thus, it is of a great value that when a person acquires the status of an employee as afterwards, the employer is obligated to perform his part of responsibilities in favour of the employee and in case of the non-obligation of those responsibilities, the employee has the right to claim remedy against his employer from the time he has acquired the status of an employee. The question that whether a person has acquired the status of an employee or not has been well settled through the decision of the Employment Appeal Tribunal (EAT) under the appeal North Wales Probation Area v Mrs D A Edwards (2007)  . Mrs. Edwards signed a document namely ‘Relief Hostel Worker Contract’ after passing the interview of Residential Probation Hostel at Plas y Wern. The tribunal observed that there was a contract of sessional employment between Mrs. Edward and the Hostel. Same was upheld by the EAT as EAT observed that whether the work was available or not, the employees used to come to the work because of the existence of the contract of employment. EAT rejected to accept the submission that there was no contract of employment and concluded that the contract of sessional employment existed. EAT has given a sound reasoning in deciding the existence of the contract of employment and has played fair with both the parties while looking into the matter. The decision also has closed the doors for the employers to deceit employees by executing an ambiguous contract of employment with the employees. This reflects the demands of fairness uplifted regarding the status of an employee, under the employment law, not only of the permanent service but also of the contractual or sessional service. The decision was made in favour of Mrs. Edward only because of the existence of the contract of employment between Mrs. Edward and Hostel, which reflects the importance of the creation of the status of an employee.
The status of an employee is a legal status and has a legal recognition because of which an employee is vested with legal rights and remedies. The employment law provides rights to the employee but also put obligations on the employee in respect of his contract of employment. To protect the employee, the employment law provides various remedies to the employee in case of the deprival of his rights as an employee during the course of employment to keep up with the demands of fairness. In case of conflicts between the employer and the employee, it is important to recognize the time when the relation of employment between the employer and the employee is created so that the rights of employer or employee are to be entertained or not.
The status of the employee was also recognized in the decision of the Cornwall County Council v Prater (2006)  . Mrs. Margaret Prater was a teacher at the Council’s Education and presented an application to sought written particulars of her employment mentioning that she is an employee since 1988 and the Council refused to do so and did not recognize her as an employee from 1988 to 1998 on the ground that Mrs. Prater was not obligated to accept work provided by the Council and vice versa. The Employment tribunal concluded Mrs. Prater as the employee of the Council since 1988 on the ground that there existed a mutuality of obligation. The Employment Appeal Tribunal (EAT) upheld the decision of the Employment Tribunal on the same ground and regarded Mrs. Prater as the employee of the Councils Education and there existed a contract of service between the both and dismissed the appeal of the Council. This tribunal looked into the matter minutely and figured out the status of employee without existence of the executed document, depending upon the relation of the parties which is a just response towards the status of employee. This decision provides a sound protection to the employees against the improper treatment of the employer in admitting the employee officially as an employee. The tribunal has played fair with both the parties and has reduced the space for the employer to take a deceitful escape because of its unfair dealing in past with the employee. Same is the demand of the fairness of the employment law to protect the party at grief which was the employee in the instant case. The vitality of the decision can not be declined by the fact that the decision was made in favour of the employee in absence of the written and executed contract of employment. This decision has eradicated the major ambiguity of recognition of the relationship of employment only through the executed contract of employment and has set rules for the recognition of the status of employment through the relationship of the parties even in the absence of the written contract between the parties. Hence, the decision meets the demand of fairness under the employment law and brings in the legal certainty to the status of the employee.
CONTRACTUAL TERMS OF EMPLOYMENT
The contractual terms are of a great value and cover heads such as status of the employee, particulars, terms of service, charges, leaves, form of service to be rendered, dismissal and remedies in case. The terms of the contract of employment are of a vital nature if endorsed as they prescribe the rights and duties of the employer and the employee. The section 1 of the Employment Rights Act 1996 deals with the contractual particulars of the employment as it states;
‘Where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment.’
The presence or absence of certain terms also results into big hurdles in acquiring rights in case of the presence of the written contract of employment. The importance of the contractual terms can be gauged by the decision of Thomas Wylie McCulloch v Chief Constable Dumfries & Galloway Constabulary (2005)  . In the said case, the claimant sought to determine certain terms of his contract of employment which entitled him for a special allowance not awarded by the employer. The Employment Tribunal refused to determine the matter and so was the view of the Employment Appeal Tribunal (EAT). EAT refused to entertain the claim on the ground that the term of special allowance was not agreed by the parties as the part of the contract of employment. The claimant faced a loss only because of the fact that the special allowance was not the part of the contract of employment and this ground reflects the vitality of terms of the contract of employment. If the same would have been as term of the contract of employment, the claimant would have had a strong position against the respondent. Hence, the terms of the contract of employment are indispensable when it comes to deciding the rights and duties of the employer and the employee keeping in view to meet the demands of the fairness under the employment laws whilst maintaining the legal certainty.
The contractual terms of employment amounting to the contract of employment has been discussed in the judgment by EAT in Dalia Ros & Daniel Angel T/A Cherry Tree Day Nursery v Miss J M Fanstone (2007)  . The judgment observes that the employer must hand over the contractual terms of employment in expressed/written form to the employee at early stage of the employment. The employer holds no right to take back the employment contract, from the employee, considering it as his own property and it would amount to a wrong construction of the Employment Rights Act 1996. Such an act of the employer would amount to breach of the Section 1 of the aforesaid Act; therefore the employment contract is to be kept with the employee. Such provisions and the support from the judgments of the appellate tribunals bring in certainty to the rules set for the contractual terms of employment and their observance is more obvious in return. The contractual terms of employment to be kept in expressed form bring in the legal certainty and the just terms endorsed in the contract of employment meet the demands of fairness regarding the laws of employment.
The Section 1 of the Employment Rights Act 1996 deals with the expressed terms of the contractual terms of the employment. For the purpose of being fair and neutral from all prospective, the contractual terms expressed in the contract of employment must cover various aspects of the relation between the employer and the employee. After the names of the employer and the employee, the date from which the employment begins is to be mentioned in particular followed by the date of the commencement of the continuous employment of the employee. The scale of remuneration of the employee and method to calculate the remuneration is to be mentioned, in the terms of the employment contract, with the intervals at which the remuneration is paid. The working hours of the employee are the vital part of the expressed terms of the employment contract which are to be mentioned as well as the holidays available to the employee.
The contract of employment must express the title of the job and the description of the job which the employee is supposed to perform. The termination of the contract of employment also takes place through a proper procedure and the terms related to the termination of the contract of employment must also be expressed to remove the ambiguity and self assumptions. The span of the job is to be expressed in case of a non-permanent employee. The contract of employment must express any collective agreement which affects the terms and conditions of the employment so to keep up the legal certainty. Furthermore, the place or area where the employee is supposed to work must be expressed. And last but not the least, the legal steps in case of conflict between the employer and employee are to be expressed and the terms of the contracts can not bar either of the party to access legal forums to acquire justice. The bottom-line of the expressed terms of the contract of employment is to keep the relation of the employer and the employee absolutely clear and free of ambiguity. Such certainty of the terms of contract of employment is helpful in resolving the conflicts outside the courts. Expressed terms of the employment contract are the real picture of the relation of the employer and the employee and more specific and certain the expressed terms, the more clear would be the picture. Hence, the proper expressed terms would also meet the demands of fairness, under the employment law, whilst maintaining the legal certainty.
The contract of employment also holds implied terms with itself other than the expressed terms which are either right or duty of the employee or the employer. The implied terms can not be ignored as they are also of equal importance as expressed terms. The presence of the implied terms serves as helping hands to observe fairness of the employment law towards the relevant parties and bring in the legal certainty to the employment law. The presence of the implied terms can be found by the decision of Derek Cook and 265 others v DIAGEO (2005)  . The contract of employment of the claimants entitled them to nine off days other than their annual leave. Conflict arose between the claimants and respondent that they are entitled to fix the off days according to their desire. The Employment Tribunal observed that the customary practice of choosing off days is not mentioned in the contract of employment, therefore the respondents are entitled to choose the off days according to their own choice. The appeal against the decision of the Employment Tribunal was dismissed by the Employment Appeal Tribunal (EAT) and the implied terms of the contract of employment prevailed. Therefore, the implied terms of the contract of employment can not be set aside as they also posses importance in the eyes of law and have an enforceability. The implied terms also are helpful to cover the missing expressed terms or loop holes of the contract of employment.
In addition, implied terms are also extracted from the principles laid in the expressed terms of the contract of employment. If an expressed term of a contract of employment mentions only the power of appointment of an authority, the implied term extracted by the same rule is that the same authority has the power to suspend the employee. That is how the implied terms play an important role to support fairness of the law of employment and bring a certainty to the employment law. Hence, the implied terms aid the law of employment to meet the demands of fairness.
It has been observed through the decisions of the British courts of employment and appellate forums that the judicial decisions have favoured employees in majority of the decisions. The reason behind is that in relation of the employment, between employee and employer, the employer holds a strong position against the employee as employee mostly has to demand his rights from the employer which lead to judicial form in case of denial by the employer. The employment tribunals at the lower level have committed various mistakes in making decisions by not looking into the matters deep enough to dig out the real essence of the law and its implementation which resulted in excessive grief for the employees.
The decisions at the appellate forums of employment tribunals have been highly appreciated as the judges of the appellate forums of the employment tribunals have appreciated the law in its true essence and interpreted the law as it is supposed to be. The judges at appellate forums have endorsed decisions on sound grounds and reasoning which have been highly appreciated by the justice seekers. Furthermore, their decisions have been impartial and just and have favoured the party at the right stand. People seeking for justice under the employment law do deplore that it takes time and costs them a heavy amount to seek justice up to the appellate forums but the decisions at the appellate forums have been broadly appreciated.
The courts and tribunals, dealing with the cases under the law of employment, to keep up with impartial justice have not only announced decisions against employers but the employees as well. The bottom-line is to provide justice in its true sense and to the party facing the denial of its right. Therefore, the decisions against employees also have been witnessed and same is the demand of justice that the decision maker must stand impartial and interpret the law justly, irrespective of the parties. The decisions of the appellate courts and tribunals being highly appreciated have led the employment law to meet the demands of fairness and provide more certainty in the legal context.
It is also pertinent that the employees must be treated on basis of equality and there must not be any discrimination in any form whatsoever. The employment law also supports the treatment of employees free of discrimination. The equal treatment also leads to a better performance of the employees. The courts and tribunals also have supported decisions upon non-discriminatory treatment and have laid the rules through precedents that the employees are to be treated on equal terms and treatments irrespective of age, experience, gender, race, nationality or whatsoever. The fairness of law also demands an equal treatment, free of discrimination, to the employees by the employers.
The courts are very vigilant in dealing cases with the matters relating to racial discrimination under employment as sometimes the employees also misuse the right of no discrimination on basis of race. The Employment Appeal Tribunal (EAT) dealt on minute points of law and racial discrimination in the appeal namely Mr. T O’Neill v Metronet Rail BVC Ltd (2009)  . The claimant considered the unfair and unreasonable treatment of the employer as racial discrimination which was rejected by the Employment Tribunal as well as the Employment Appeal Tribunal (EAT). Both the tribunals accepted that there has been an unfair and unreasonable treatment by the end of employer towards the employee but that treatment has nothing to do with the racial discrimination and the appeal was rejected. Same is the demand of the fairness of law that the claimant must not be awarded with his claim without evaluation on solid grounds. The courts have to gauge the facts and apply laws accurately and be vigilant to not to let anyone misuse the law. Thus, the aforesaid case barred the employee to take irrelevant grounds to strengthen his case against the employer and as a result the court met the demands of fairness.
The equal treatment with the employees by the employers is of a great value as it reduces the chances of conflicts between both the parties in relation of employment. Lesser the conflicts, the better would be the outcome and it would also reduce the burden from the courts. Hence, it is to be made sure that equal treatment, free of discrimination, be applied to meet the demands of fairness whilst maintaining the legal certainty.
The Employment Rights Act 1996 equips employee with the right to not to be dismissed unfairly by the employer. The dismissal of an employee amounts to unfair dismissal in the following instances;
Dismissal by the employer without any fair reason to dismiss.
Dismissal made without the proper procedure of dismissal.
Dismissal made on unfair reason.
The unfair dismissal on basis of procedural error was well dealt by the Employment Appeal Tribunal (EAT) in the appeal Zimmer Ltd v Mr. N Brezan (2008)  . Mr. N Brezan was unfairly dismissed by the ZL Ltd as ZL Ltd disregarded to follow the statutory provisions and proper procedure laid in the Employment Act 2002 was not entertained by ZL Ltd. Furthermore, Mr. N Brezan was unaware of being at risk of dismissal which amounts it to an unfair dismissal. The disciplinary action against Mr. N Brezan was to be followed which was a cumbersome process but is declined to be observed by ZL Ltd. The EAT was of the view that the employee is entitled to be aware of the action which can be taken against him by the employer so to equip himself with the defense for the situation which he can face in future. Thus, this information is to be forwarded to the employee so he can deal with the matter step by step. EAT also has put an emphasis on notifying the employer about the risk of dismissal in clear rather than equipping him with an ambiguous information lacking a sound risk of dismissal. The decision of the Tribunal was that the dismissal of MR. N Brezan by ZL Ltd was an unfair dismissal and the same was upheld by the EAT.
The aforesaid case is a clear example of the fairness of the employment law in respect of the communication between the employer and the employee regarding dismissal of the employee. The tribunal has laid sound reasoning to eradicate the ambiguity in cases of dismissal so to discourage unfair dismissal of the employee by the employer. Such decisions play a vital role in bringing in a fair and neutral law with an equal balance between the parties and keep up the impartiality. The case under discussion also has made firm the future observance of the procedural steps in case of dismissal of any of the employee and has warned the employer from exercising deceitful measures against employee to cause his dismissal.
The employment law covers the concept of unfair dismissal in a broad sense and protects employee from facing an unfair dismissal and incase if an employee faces an unfair dismissal, the employment law provides him with various remedies and job security and also awards him with compensation for the financial loss he goes through in consequence of the unfair dismissal. Hence, the demands for fairness in respect of the unfair dismissal under employment law are well observed.
CAREFULLNESS IN DECIDING UNFAIR DISMISSAL
The Employment Appeal Tribunal (EAT) has very well set the lines of carefulness in deciding the unfair dismissal through the appeal made before the tribunal in KRD Property Maintenance Ltd V William James Cassidy O’Donnel (2010)  . The business of the Respondent was to provide cleaning services for property and not for the individuals. The fact that the claimant used the equipment of respondent twice to provide cleaning services for individuals twice was brought into the notice of the respondent and the same was accepted by the claimant on the disciplinary hearing on 29th June 2009 and as a result, the claimant was dismissed. The tribunal considered the conduct of the claimant as ‘blameworthy conduct’ but ‘not misconduct’. Furthermore, the tribunal also found procedural unfairness in the dismissal of the claimant. The Employment Appeal Tribunal (EAT) found various flaws in the decision made by the tribunal. The EAT concluded that the statement of a person having less experience does not make his statement less credible in comparison to a person having a greater experience. The EAT also observed that there is no clear distinction drawn between misconduct and blameworthy conduct. EAT took a technical observance of the facts and denounced the decision of the tribunal.
This case reflects the need of carefulness in deciding whether the dismissal which has taken place is unfair dismissal or not. The fairness also demands the same carefulness so that either of the parties may not go through an unfair grief. This decision of EAT removed various ill concepts which were expected to be exercised in further cases of dismissal. This progress in the employment law promotes to fulfill the demands of fairness in the employment law and provides a sound legal coverage to the employer and the employee and the relationship between the employer and the employee. It requires various steps to be taken to complete the legal procedure of dismissal so that neither of the party may deceive the other and while judging such dismissal, it requires a great amount of care to endorse an appropriate decision in conformity with the demands of fairness which have been fulfilled in the aforesaid decision.
The Constructive Dismissal has been established, by the latest, through the appeal Chris Dickins T/A Chris Dickins Solicitors V Miss D K Virdee (2010)  before the Employment Appeal Tribunal (EAT). The claimant used to deal in commercial litigation and was located in London while the Respondent being located at North Lincolnshire was a practitioner of criminal work and convincing. There has been an arrangement on the splits of fees between the parties and a new agreement upon the claimant’s salary and bonus. Mr. Dickins did not entertain the terms of the bonus of the claimant and the Tribunal agreed upon that the breach trust and confidence took place which led to the constructive dismissal. The fact that the claimant has been into negotiations with another firm also amounts to constructive dismissal. The appellate tribunal upheld the decision and the constructive dismissal entertained. The instant case possesses a reflection to the fairness of the employment law as it does not connect the employee with the employer in a submissive status. In fact, the employee is equipped with various rights at various stages and also is vested with the right to seek remedy in case of conflict with the employer. Therefore, it would be correct to say that the decision made by the case under discussion provides a sound fairness to the employment law in respect of the constructive dismissal and also brings a certainty to the employment laws.
Constructive dismissal does not require a certain and specific communication of the termination of the relationship of employment. Various facts between the employer and the employee and the policy of the working place lead to the constructive dismissal which is understood without a proper communication. Though, sometimes the matter is referred to the tribunal or court in case of ambiguity or refusal to accept the existence of the constructive dismissal. The tribunal or court is the legitimate forum to decide whether the constructive dismissal has taken place or not, as is decided in the aforesaid case.
LIMITATION OVER THE CONSTRUCTIVE DISMISSAL
Unfair use of the concept of constructive dismissal also has been observed for which various limitations have been set. Few of the limitations over the constructive dismissal have been laid in the appeal Mr. B Bedford V Pilgrims group Ltd (2010)  . The claimant was the employee of the respondent and faced various issues with respondent in respect of employment. The claimant lacked trust in the respondent in respect of his employment and claimed for a constructive dismissal as there were raised conflicts and issues between them. The tribunal concluded that the breakdown of the employment relationship was not the consequence of the response of the respondent but of the claimant’s and therefore he was not constructively dismissed and his claim of constructive dismissal failed. The decision of the tribunal has been upheld by the Employment Appeal Tribunal (EAT). It is also of a great value that the extent of conflicts between the employer and the employee be laid which lead to the constructive dismissal otherwise every minor conflict may amount to constructive dismissal. The said job has been well furnished in the aforesaid case as the tribunal discarded certain conflicts between the employer and the employee to amount them to the constructive dismissal. In fact, the mere lack of confidence by the employee in his employer, without a reasonable and certain ground, has been discarded by the said decision to amount it to a constructive dismissal. These boundaries drawn by the Employment Appeal Tribunal (EAT) has set limitations over the constructive dismissal and also has barred employees to take a mean full advantage of the concept of the constructive dismissal.
Such limitations are necessary to bring in a balance in the employment law so that it treats the subjects fairly and impartially. For this reason, no one can claim the employment law as employer friendly or employee friendly. The judgments have added well to the employment law to bring in a balance and fair practice of the law and eradicate the ambiguity if it comes up between the parties. Hence, employment law does reflect fairness with legal certainty.
WHY EMPLOYEE BELIEVES DISMISSAL
It also has been observed that sometimes misunderstanding of the facts between employer and the employee leads to the situation where employer and the employee treat and understand the facts in an opposite manner. Many of the times, employee believes his dismissal on a particular ground which in actual is not on the same but some other ground. The reason for such a misunderstanding is that the employee perceives the facts not in their actual context.
The appeal namely Mr. F Daley v Serco Home Affairs Ltd and others (2010)  before EAT is a clear example of an employee who misunderstood his dismissal as a dismissal on racial grounds. The employee knocked the door of the Employment Tribunal on the ground that his dismissal was purely based on racial discrimination. The Employment Tribunal dealt with the issues of constructive dismissal and racial discrimination and concluded, keeping in view the facts, that there has been no discrimination on grounds of race. The employee filed an appeal before the Employment Appeal Tribunal (EAT) and EAT after considering all the facts and the grounds observed that decision of the Employment Tribunal is just and EAT upheld the same and dismissed the appeal. The tribunal dealt with the matter justly and removed the misconception of the employee that dismissal was made on ground of discrimination on basis of race. Due to such misunderstanding many of the times the employees consider themselves dismissed unfairly. The treatment of the employer is of vital importance as it can lead to double innuendo which leads further to misunderstanding between employer and the employee. Such misunderstandings fail
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