Employment Law - Contract and Contents - Assignment Example

BUSINESS LAW __________________________________________ Employment Contract and Contents College Question Explain the information which is required by law to be contained within a written statement of terms and particulars of employment. An employment contract is a legally binding relationship between employer and employee that defines the structure and contents of the relationship and it strengthens all the claims to employment tribunals (Leighton, 2006, p. 11). Employee recruitment itself is a step forward to create an employment contract and an effective and well-conducted recruitment will consequently ease the procedure of forming employment contract in order to include relevant contents in it. A complete employment contract must allow the employer to specify the duties and responsibilities that are assigned to the employee so that he must be able to know exactly what has been expected from him. Holland (2007) states that most employees have their own right under ERA 1996 to receive a statement of initial employment particulars and detailed statement of employment contract (p. 41) Most essential contents and features of a contract are ‘control’ and ‘mutuality of obligations’. ‘Control’ occurs when employer specifies what to do, when to do and how things to be done. ‘Mutuality of obligation’ is the most important ingredient in an employment contract which occurs when employer undertakes to provide a person with work on specified conditions or employee undertakes to carry out the work assigned to him (Chandler, 2003, p. 85). By Law, all employers are obliged to provide each of their employees with a written statement setting out certain terms that define the employee- employer relation. The City Law School (2008) argues that mutual obligations are necessary for there to be a legal contract between employer and that a contract, under which there is no mutual obligation, cannot be considered to be a contract of employment (p. 79). Under the ERA 1996 sections 1- 7, a legally binding employment contract must contain names of the contracting parties and their place of residence and workplace. It must detail employees job description including work commencing date and place of work, or, if there is no main and permanent workplace, it must be stated that work needs to be performed at different places. (Reitz, 2006, p. 67). There should be a statement about how long the employment relationship can last in the employment contract. Amy DelPo emphasizes that when a contract says that the employment will continue for a measurable time period, the employee generally cannot be fired during that specified time without reasonable cause (p. 40). Employee’s working hours need to be specified in the employment contract as it would help both parties to identify extra work and extra pay for additional works done. Statement regarding basic remunerations, bonuses, other allowances and incentives and payment periods must be included. Expenses that will be met by employer during the work time should be specified in a legally binding contract so that any later disagreement can be avoided. The statement must contain details regarding holidays, when it starts, duration of holidays and weekend holidays. Other relevant contents in a contract of employment are given below: Sickness and disability clause that state when the employees have to inform employer in case they are unable to attend the work. A note specifying any grievance and disciplinary rules that will be applicable to employees. Details of any work abroad that may last more than one month (Holland, 2007, p. 42). Daniels (20040 emphasizes that when an employee is required to work outside of UK for more than one month, apart from stating the work details, the currency of the remuneration and or extra benefits applicable to the work must be specified and detailed (P. 37). Terms derived from collective agreements. According to Leighton (2006), terms derived from collective agreements will occur when employees are in a category at the workplace that has been covered by a particular collective agreement (p. 13). The employees must be informed that the collective agreement is a source for some of their rules and terms of the work. The names of those authorized people to whom the employee is entitled to inform when he or she has been satisfied with any disciplinary matter or to raise any grievance related to the employment. Statement regarding employee’s contractual retirement. The employer has option to specify a trial period that is called probationary and it can be with a short notice period at the end of the specified period. According to Reitz (2006), when the employment contract is concluded, both parties can agree on probation period and generally the duration of the probation period does not exceed 6 months. During the probation period, the notice period is minimum 7 days (p. 68). Question – 2 Within what period of time is an employee entitled to receive a written statement, and what are the potential legal consequences of an employer’s failure to provide such a statement? The minimum period of time that an employee is entitled to receive his or her written contract is 2 months from the date of commencement of the employment. Daniels (2004) states that sections 1- 7 of the Employment Rights Act 1996 has set out the right for all employees to receive a written statement of initial employment particulars not later than two months after the beginning of the employment (p.36). A contract of employment comes in to being when the employee starts his work. The minimum period for receiving the contract does not mean that the contract comes in to being only when employee receives his contract. The employment contract is not the mere contract, but rather it is a prima facie evidence of the terms agreed upon by both employer and employee. A written contract statement some time would be considered to be the only documentary evidence, in some cases, and an employee may have a hard job convincing a tribunal that the document issued by the employer does not exactly reflect the contractual agreement (Holland, 2007, p. 42). A qualifying employee must be entitled to receive his or her statement of employment contract even where the employment ends before the period of two months when they need to reference. In the employment relationship, both the parties are obliged to work in accordance with the terms and conditions specified in the written statement, provisions of Labor Law, treaties and collective agreements. Employer must enable the employee to be acquainted with the assigned tasks before he begins working on it. When certain changes occur in the terms and conditions that are already issued to the employee, those changes must be duly informed to the employee so as to avoid any further legal difficulties. Legal Consequences of failure to issue written statement Employers failing to issue employment contract was initially, in 1963, considered to be criminal offence, but now there are options that employers can make reference to an employment tribunal (Holland, 2007, p. 43). When there are no certain terms or particulars have not been issued to the employee, the tribunal may determine what the parties have generally agreed up on and hence what terms are supposed to be there in the statement. The tribunal generally will look at both express and implied terms and also will look at how the contracts have been performed. ERA sections 11 provide for reference to an employment court or tribunal when no employment contract statement has been given to the employee by his employer or when there is disagreement on the contents of the statement. In such case, the tribunal is entitled to declare what terms and conditions to be included (The City Law School, 2008, p.87). The tribunal has thus the obligation to fill the gap and to avoid disputes among employees and employer. In order to do this effectively, the tribunal will look at implied contracts or oral agreements that may provide solution that what terms are supposed to be there in the statements or it will look at an already written statement because a term may be obvious from another term. If both the aforementioned means are not practical for tribunal, it may consider how the contract has worked in practice or look at the structures and ways that the particular employee has been practicing. An employee would perform a task on some sorts of implied or otherwise agreements between employee and employer. Question- 3 To what extent can an employee who is dismissed by his/her employer due to a written statement-related matter have a legal claim against that employer? Peter Chandler (2003) states that an employee is legally entitled to resign and submit complaints against unfair ‘constructive dismissal’, if the employer has breached a term of the employment contract and this breach is so serious as it destroys the very basis of the contract (p. 47). When an employee feels that his employee has breached the contract the implied term of mutual trust and confidence were held not as good as it should be. The written statement issued to the employee by his employer is the ultimate evidence of the express terms in the contract. When an employee signs a document agreeing upon the receipt of his statutory terms it forms to be evidence that the employer has complied with his obligations (The City Law School, 2008, p.88). It shows that employee can legally claim against his or her employer in case that employer dismisses him due to reasons that are against the terms given in the statement. Same time, if his employer dismisses the employer due to his mistake or mischief and it has been stated clearly in the statement, the employee would no more be able to claim against his employer. It is generally accepted in any Law that breach of the contract by one party enables the other to claim against it. If the employer fails to fulfill his duties according to what are clearly stated in the written statement of the employment contract, the employee is legally eligible to claim against his employer. When an employer fails to pay on time, to pay bonus, to provide better working environment, to allow holidays and to facilitate all those relevant things that are agreed upon, the employee can approach tribunal and reference the copy of written statement. Hardy (2006) stated that an employee is under the obligation to obey lawful instructions that are given by the employer to him. There is an implied term in a contract of employment that the employee must be reasonably competent to do the job. So, serious incompetence can justify the employer to terminate the contract (p.31). It shows that an employee who has been dismissed due to his incompetency cannot legally claim against his employer. Employees have the duty that all the instructions given by employers must be done, but at the same time law restricts that only legal and reasonable instructions can be given. In case the employee has been dismissed or terminated from the job due to that he did not perform an instruction given by employer which he felt as against the law or not as reasonable, he is legally eligible to claim against his employer. When an employee suffers a measurable financial loss due to his employer’s breach of contract of employment, more specifically breach of terms in the statement, the employee is entitled to seek damages by calming against his employer. References Chandler P (2003), An A-Z of Employment Law: A Complete Reference Source for Managers, 4th Edition, Kogan Page Publishers Chandler P and Waud C (2003), Wauds Employment Law: The Practical Guide for Human Resource Managers, Trade Union Officials, Employers, Employees and Lawyers, Edition: 14, Kogan Page Publishers Daniels K (2004), Employment Law for HR and Business Students, CIPD Publishing DelPo A and Guerin L (2007), Dealing with problem employees: a legal guide, Nolo Hardy ST and Upex R (2006), Employment Law for Business Students, SAGE Holland J and Burnett S (2007), Employment Law, Oxford University Press Leighton P and Proctor G (2006), Effective Recruitment: A Practical Guide to Staying Within the Law, Thorogood Publishing Reitz AE (2006), Labor and employment law in the new EU member and candidate states, American Bar Association The City Law School (2008), Employment Law in Practice, 8th Illustrated Edition, Contributed by City Law School England, Oxford University Press US Bibliography Broadhurst E (2005), Employment Law: A Comprehensive Guide to All Aspects of Employment Law, Straightforward co Ltd Eaton J (2000), Comparative employment relations: an introduction, Wiley-Blackwell Lockton D (2005), Employment Law Q&A, Routledge Cavendish Wolkinson BW and Block RN (1996), Employment law: the workplace rights of employees and Employers, Wiley-Blackwell Read More