Importance of Employment Law and Practice - Essay Example

?Employment Law and Practice Work life balance refers to the satisfaction and good functioning both at work and home with minimum conflict in roles in both domains (Clark, 2000, p.751). In addition, work-life balance is sometimes attributed as ‘the absence of unacceptable levels of conflict between work and non-work demands” (Greenblatt, 2002, p.179). The conflict under-consideration can take place when work responsibilities confront with those of family and home and vice versa (Sturges and David, 2004, p.6). The European Unions’ Working Time Directive (WTD) had been subjected to considerable speculation in the UK since its inception in 1993. It is because the Directive marks a profound transformation in the traditional deregulated understanding of working hours (IRS 1999). This paper briefly outlines the nature of legal regulation relevant to work time and work-life balance and the regulation’s impact on employers’ practice and concludes that regulation has little impact on actual practice of work-life balance due to the certain provisions. Introduction Regulation 4(1) of Working Time Regulations replicated the Article 6 of the Directive which provides that the working time for any employee in addition to overtime should not exceed from 48 hours per week for every seven days throughout a reference period of 17 weeks (cited in Barnard 1999). Moreover, Britain sought benefits from individual opt-out allowed by Article 18(1) (b) which permitted employees to exceed from 48 hours working limit in agreement with employers. The 1998 Regulations established detailed record keeping rules, however, businesses regarded that it has ‘gold-plated’ the Directive (Barnard, Simon, and Richard, 2003, p.224). Amendments in Working Time Regulations in 1999 (Barnard, 2000) resulted in the diluted requirements of record keeping. Regulation 4(1) stresses that unless the employer get it in writing, the workers’ working time including overtime shall not go beyond 48 hours in a week. Regulation 4(2) demands from employer to maintain updated records of all the workers who opt-out due to the agreement between employer and employees (cited in Barnard, Simon, and Richard, 2003, p.225). Rationale for the Directive The EC Working Time Directive principally requires its member state to put the limits on the length of working day and week in addition to setting at least a minimum amount of leave that is paid(Lourie,1998,p.7).According to DTI(2001) the Regulation represented striking transformation, in particular for UK, where working time is not much regulated and existing regulation was annulled during 198s and 1990s(Cited in Neathey and James,2001,p.1).Formal intention of the Directive was a ensuring health and safety by decrease in long working hours(Goss and Derek 2001,p.205). According to DTI, WTR is perceived to have far reaching implications for UK, it is: “...due partly to the introduction of Regulations into a previously unregulated area and also to the working time patterns that operate in this country: full-time male and full-time female UK employees work on average considerably longer than those in   other EU countries.”(Cited in Neathey and James, 2001, p.1) When the Working Time Directive was implemented in 1998, the proceeding legislation was perceived to be; productive for the British economy in the form of enhanced productivity and innovation, meet the traditional social policy aims regarding health and safety (the legal justification for implementing the Directive), and to strike a balance between work and family (Barnard, 1999 cited in Barnard, Simon, and Richard, 2003, p.248). However, Chancellor of the Exchequer in his Budget Statement during 2003 stated that, “In striking the balance between dynamism and social standards, our position is that no change to European regulations, like the working time directive, should risk British job creation” (cited in Barnard, Simon, and Richard, 2003, p.248). The Statement clearly reveals government’s perception that derogation in the Directive is crucial for the ‘flexibility’ of British labor market in comparison to its European counterpart. The term ‘flexibility’ refers to the freedom of labor market from external pressures, the regulation. Working time regulation is perceived to constitute a model of difference between an intensive regulation system in continent and lightly regulated British labor market (Barnard, Simon, and Richard, 2003, p.248-249). Barnard, Simon, and Richard (2003) identified that nearly all relevant players, such as, unions, employers and associations, and public bodies believe that under certain situations, long working hour culture becomes counterproductive. Long hour practice can lead to higher rate of employee sickness, absenteeism and decreased productivity. Reduced working hours can secure cost on these grounds and will direct the simplification of working time system (249). It has been practiced in several European systems since the implementation of Directive and working time legislation since mid-1980s (Bosche et al, cited in Barnard, Simon, and Richard, 2003, p.249).Broadly, the Working Time Regulation can be regarded as a part of general form of change in UK’s industrial relations which seem to may be associated with a transformation into a greater justification of individual employment relation (Goss and Derek 2001, p.207). Working Time Background According to Workplace Industrial Relations survey, payment and basic conditions of work, such as, working hours remained a basic concern of joint regulation between management and trade unions (Millward, et al, 1992, p.352).Furthermore, working time as always hold a significant position when it comes to job satisfaction, motivation and retention (Cully, et al, 1998, pp.21-22).There has never been a centralized legislative regulation for working time in the UK. Typically, working hours have always been fixed by collective agreements negotiated at sector or plant level. After the adoption of Regulations in 1998 that led to the implementation of the EC Working Time Directive, a considerable change in working time culture can be expected (Barnard, Simon, and Richard, 2003, p.223). Library Research Paper 96/106 analyzed the Directive and its consequences in November 1996.Directive was supposed to be implemented in UK by November 1996,However,UK’s Conservative Government hold it while European Court of Justice debated the Directive’s legal basis in UK. The challenge proved to be unproductive (Lourie, 1998, p.7).According to DTI’s Consultation Document (1996) government should utilize the provisions of exemption and variation in Directive if it is possible in order to curtail its impact. Despite the requirement of response by 1997, Directive’s implementation is delayed until General Election of 1997.Despite being committed to implement; Labor Government also spent considerable time in taking decision (cited Lourie, 1998, p.7). According to Fairness at Work White Paper, legislation will not only lead to work-life balance but also trigger efficient working practice and innovation (cited in Barnard, Simon, and Richard, 2003, p.223). In addition to that, based on the Directive, Working Time Regulations 1998 provide an opportunity for individual workers to sign agreements with employers to opt out of 48-hour weekly working limit. The particular provision is 18(1) (b) of the Directive and it had a limited scope that refer to a reconsideration of provision after seven years of the implementation of the Directive (Barnard, Simon, and Richard, 2003, pp.223-224). Interaction of law and employment practice The research done by Barnard, Simon, and Richard (2003, p.249) reveals that the government’ idea of ‘flexibility’ in the form of derogation to regulation is shared by not only some employers but also employees and their representatives as well. Individual opt-outs are considered essential when it comes to meeting customers’ demands or requirements when long working hours are presumed. On the other hand, employees accept long working hour culture in order to boost their income and, in some cases, to feel confident of individual autonomy and exercise power over working arrangements. On the other hand, some believe that UK’s work time practice is rigid and, thus, ineffective. According to DTI (2001) most of UK’s organizations’ HR department conducted assessment researches in order to find the level of compliance with WTR. Fundamentally, the implementation of WTR was a centralized process that is only handled by managers while there were a very few cases that involved line managers and employee representatives on practical level. Only a minority of organizations assessed their working practices in accordance to the Regulations (Cited in Neathey and James 2001, p.18) Individual opt-out is extensively used as compared to other derogation of the Directive. It is considered as an accommodating and effective mechanism to deflect the working limitation of 48-hours per week. The convenience of opting to ignore it is a crucial factor that contributes to its little impact on working culture. Other driving factors include employers’ perceived requirements of flexibility, and employees’ need to increase their income or status (Barnard, Simon, and Richard 2003, p.224). According to Third Work-Life Balance study, conducted by Education and Employment (DfEE), less than half of British workplaces were following the standard ‘five days a week’ routine. Nearly one third of workplaces were open seven days a week in 2007, workplace opening tendencies showed little change since 2003. In addition, Approximately 7 out of ten workplaces operated in standard office timings, however, the study highlights great diversity in employees’ working patterns (cited in Hayward, Barry, and Alex, 2007, p.16). As in 2003, most all workplaces reported some overtime working among managers and non-managers at their establishment. Managerial staff remained less likely than non-managerial staff to be paid for overtime and both managerial and non-managerial staff was less likely to be paid for the overtime than in 2003.”(Hayward, Barry, and Alex, 2007, p.16).According to Third Work-Life Balance study, two third of British workplaces reported that now managers and professional staff have more work to complete in same hours as three years ago. 38 per cent reported an increase in non-managerial workload while only a few workplaces confirmed the lowered workload. A small but indefinite number of non-managerial staff identified to be working ‘long hours’ according to the Working Time Regulation parameters and opting out appeared to be an uncommon practice (Hayward, Barry, and Alex, 2007, p.16).On the other hand, Arrowsmith (2000,p.4) identifies that the immediate impact of the implementation of regulation was to motivate employers for seeking ‘flexibility’, in particular, ‘opt-outs’ from employees in order to keep the impact the least possible(Goss and Derek 2001,p.207). Regulation’s impact and employers According to Third Work-Life Balance survey, overall employers’ attitude towards employees’ work-life balance was positive (cited in Hayward, Barry, and Alex, 2007, p.69). Employers acknowledged its importance and approved that it is productive for both employers and employees. Such positive attitude is associated with several flexible working practices in the workplace. Employers who operate with greater number of flexible working practices are more inclined to express positivity about work-life balance. Factors contributing to such association are unclear but implementation or work-life balance seems to be strongly connected with employers’ positive attitude. Two third of employers believed that Employment Act 2002 had no considerable impact while it was obvious among the employers with large number of workforce who regarded the regulation as expensive but beneficial. This tendency reveals a diverse requirement of larger workforce and capability of employers to adapt to the cost and flexible working (Hayward, Barry, and Alex, 2007, p.69). While analyzing the pragmatic reasons for using individual opt-outs, Barnard, Simon, and Richard (2003, pp.240-242) discussed the issue with Employers’ organizations who attributed it as a simple section of the legislation as they are used to amend what is perceived to be the troubling part of the WTR. A major reason for such attitude is the practice of replicating European Directives with minor amendments. Employers expressed confusions about the idea of ‘unmeasured’ working time in the regulation 20 of Directive. Most employers reported that they find it comparatively less threatening and administratively easier to give individual opt-outs even when they were able to utilize other provisions of the regulation. Employers utilized opt-outs in an n effort to minimize record keeping and monitoring cost. Moreover, employers argued that availing the opportunity provided by opt-outs considerably reduced the chances of industrial disputes over the interpretation of WTR). [WTR is used for Work Time Regulation, it is not a source] According to Workplace Employment Relations Survey (WERS) (2006) [it is an indirect citation, from Kersley et al,2006], despite of the available arrangements that could work towards facilitating work-life balance, nearly two-third managers considered it the individual employees’ responsibility to balance his working and family life. The ratio of such managerial beliefs was 69 per cent on managerial while 58 per cent (over half) of employees confirmed that their managers understand their responsibilities out-side work. Surprisingly, women managers were less likely to entitle individuals as responsible for work-life balance (cited in Kersley et al., 2006, p.448). According to the DTI (2003) in current legislative environment, increasing flexibility is built around the idea of work-life balance which is positioned as beneficial for all actors in labor force-employer, employees, and families. Part-time work is considered central to work-life balance in UK for the right to flexible working (cited in Tomlinson, 2007, p.401). The legislation had some impact on reducing working hours and working practices, but the traditionally familiar characteristics are intact. Based on government’s Labor Force Survey evaluation and TUC-commissioned survey, TUC study (2002,pp.15-22) reports that 16 per cent (approximately four million) of the labor force is working more than 48 hours per week in comparison to 15 per cent (3.3 million) in the early 1990s while employees working for more than 55 hours per week increased to 1.5 million. The UK’s average working hours per week amounts to 43.6 hours while it is 40.3 hours in most of EU’s countries. Long hour working is usually availed by managerial and professional workers from both sexes. Male workers were more likely to be working long hours in construction, manufacturing, and transport. For managerial positions, main reason for this practice was reported to be excessive load while manual workers attributed it to a means of increasing their income through overtime. [These were page numbers; I have shifted them with citation now]. Conclusion The subject of continuous speculation in UK’s employment relation, the EU Working Time Directive (EWTD) has limited impact on a deep-rooted culture of long working hours. According to different case studies, the major factor contributing to this failure is individual opt-outs for 48-hours weekly working hours limit (Barnard, Simon, and Richard, 2003, p.223-252). According to Barnard, Simon, and Richard (2003, pp.251-252) working Time Directive yet to have a significant impact on employment relation in UK. Minimal reduction is observed in the hours worked by male workers since 1998.However, implementation of Directive does not appear to be changing the practice of managing working time. 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