Employment Law In UK - Essay Example

?Employment Law Introduction The UK Employment Rights Act 1996 identifies an employee as any individual who has entered or working under a contract of employment. As opposed to the provisions that are outlined under the ERA 1996, the employment provisions that the Employment Rights Act 1996 identifies only valid “employee” and by valid here I mean only those that are currently in contractual circumstances. On the other hand, ERA 1996 entails provisions that are applicable to employees, ex-employees and many others (Bell & La Valle 2003). The provisions defined under these two statutes do not necessarily apply to contracts that have been engaged in written means. They are as well equally applicable to persons who have entered into contracts where there are no written documentations. ERA 1996 also incorporates in its definition of an employee who works on casual basis and such a person is rendered liable for the protection rights that the statute identifies itself with (Rose 2003, p.524). Office holders in the line of police, coroners and other civil servants have been excluded in the definition of “employee” under the ERA 1996 and this has been explained as important for technical reasons. Until 1st January, 2010 church ministers and the clergy were also excluded under general provisions of statutes that define and give provisions for “employee”. Later, they have been defined as employees and have consequently enjoyed the provisions explained under the statutes (Rose 2003, p.512). Regarding trade unions, several dignitaries have not been identifies as employees to the unions according to the provisions of these statutes. For instance, shop steward or an official of the union is not regarded as am employee of the union (Bell & La Valle 2003). Discussion Employee protection statutes are a significant item in UK law. Over time, there has been radical criticism about the constituents of these statutes and the definition that they give about who is an employee. Apparently, it has been said that independent workers who are sometimes referred to as self-employed people should be subjected to the protection and general provisions that are stated in employee protection statutes. This has however been subjected to a different school of thought that argues the indifference between workers working under a contractual agreement and those that are independent or rather self employed. Self-employed workers are in no manner offered any form of protection under the provisions of employment law. The issue about who “self employed” an “employed” was contentious and it could not be clearly pointed out the differences that stands between the two (Rose 2003, p.512). A test table that has been used to differentiate ideally between these two categories of workforce in UK was devised by the courts systems and assumed the shown model: Table 1: Tests differentiating employed &self employed Test Factors Control – defines the person who holds control over task, including the mode, timing and means of performing a task Obligated to obey orders, discretion made supervisory mode of working or hours of work. Integration - this shows the integration of work to the business There should exist a grievance/disciplinary procedure to be followed which should be included in occupational benefit schemes. Economic Reality – Financial risk involved Method of payment to be used, investing in own business, tax and national insurance payment methods, and coverage of holiday/sick pay Mutuality of Obligation: evidence showing formal subordination to contract terms This includes the duration of engagement, terms of engagement, right to refuse work, custom in the trade. Based on Burchell et al (1999, p.11) According to the table, the courts attempted to identify the dependency level of the person to the employer. This was deemed important in identifying the individuals that were reliable for the provisions that are as stated in the employment law statutes. However, the degree at which the factors in question are considered was subject to discretion of the judiciary. Mutuality of obligation as explained remains the most ambiguous test and is more often seen to classify workers on temporary terms as self-employed. According to Harvey (2001, p.15) application of these test may possibly result to 11 outcomes depending on the factors in consideration. He continues to argue that in the same line, only two of these tests produce definitive explanations that distinguish between “self-employed” and “employed”. Burchell et al (1999, p.43) identifies a similar phenomenon and argues that the tests leave a considerable ambiguity in the differentiation of these two terms. He also argues that the tests shows absence of consistency when it comes to employment, tax law and social security. This follows the fact that at times these employment laws are easily gratified than tax laws and therefore legal jurisdiction is not always met by the tax regulations. Harvey( 2001, p. 20) self-employed through not protected by the employment law, they enjoy lower income tax rates and can as well put claims against some tax obligations that they may be subjected to. On the other hand, their employed counterparts enjoy unsolicited protection by employment law though they may be required to pay higher income taxes and cannot put up a claim against imposed tax obligations. Burchell et al (1999, p. 46) explains that among the protection given by these employment provision statutes include redundancy compensation, guaranteed pay and protection from unfair dismissal. The UK Equal Pay and Wages Act 1986 provide who is entitled to the Act by issuing a legal concept of who a “worker” is. The act has portrayed a well-laid legal framework that issues many rules and regulations that are applicable to all workers and some that are specifically defined to cater the interests of the employed. A clearer definition was drawn by the Act that defines an employee as a worker working under certain contract or employment terms as outlined by the employer. The provisions therefore identify people working as casual laborers as employees working on short-term contracts. A closer look at this issue tells us that all employers can be regarded as worker but on the other hand, it is not all workers who are employees. This wider scope of definition of an employee has led to the realization of more legal frameworks that looks into the interests of these people. In this regard statutes like the National Minimum Wage Act 1998, Working Time Regulations Act 1998 and the Employment Relation Act 1999 have been put in place. Categorically this wider scope of legal representation has incorporated some people who were earlier left outside the bracket. These statutes have successful ensured that the represented populations have a guaranteed minimum salary/ wage received by the employees, an average working time of 48 hours every week and a paid holiday package every year to the people (Law Pay Commission 2007). The significance that these Acts has achieved in worker protection is reputable. However, there are still some aspects that have not been conclusively resolved pertaining worker or rather employee protection against inhumanity or oppression by the employers. For instance, the Acts has failed to identify legal approach to matters concerning state pension, sick pay compensation and allowance to be given to Job Seekers. TUC (2000a) indicates that despite the wider scope of worker eligibility, there remain workers who are excluded in the provisions. Working or employees working under very short contracts are not catered for legally by these Acts. There is therefore still unturned stones in as far as employment protection by these Acts are concerned. We cannot however fail to acknowledge that a significant deal if success in employee protection has been realized. Employees have been accorded protection against such issues as redundancy claims, unfair conditions of working, and unfair dismissal from work, employment tribunals and sick pay. Redundancy payment Deakin and Morris (1998, p.76) explains according to UK employment law, one is entitled to a payment if he is dismissed for redundancy reasons. Example of such a reason is when the employer intends to do the duties that were designated to the employee or he has ceased to carry on the business for which an employee was employed to do (Law on the Web, 2011). In simple terms, an employee is redundant in a working environment when the company or work place closes down or when the activity that the employee was required for stops and therefore the work place is not in need of the services of that particular worker anymore. The law however requires that the dismissed employee should have been available for work at the work place in order to qualify for redundancy payment. Redundancy payment has no age limit as long as the person in question was a valid worker in this work place. Certain circumstances however exempt workers or rather employees from their right for redundancy payment. When an employee is dismissed following misconduct within the working premises, he or she loses his or her right to claim redundancy payment (Law on the Web 2011). In cases where the company has alternative employment opportunities where the dismissed employee can fit then the employee refuses the proposal for any reason, then he or she cannot claim redundancy payment through any legal framework. The law also states that employees on fixed-term cannot claim redundancy payment if they have for any reason denounced their redundancy rights. Also, certain employees including share fishermen, foreign government employees and people working abroad have no legal right of claiming redundancy payment (Law on the Web 2011). The law has entailed a redundancy payment scheme through which the amount to be paid to the dismissed employee will be paid. Some employers also have a well-outlined redundancy payment scheme which sometimes has been regarded as being more generous than the statutory scheme considering the amount they offer to pay to their dismissed redundant employees. The statutory redundancy payment scheme provides that the dismissed employee receives: One and a half of the pay one was getting weekly for each year in which the employee was over 41 years of age; The pay one was getting weekly for each year in which they were over 22, but under 41; and Half of what he was getting weekly for each year under 22. (Law on the Web, 2011). The maximum number of years that the statutory scheme considers is 20. It also allows a maximum redundancy payment of ?12, 000. Some non-statutory payment schemes however can have this maximum value amounting to ?30, 000 which is exempted from any form of taxation (Law on the Web, 2011). Protection against unfair dismissal. Employers are discouraged from unfair dismissal of employees under the statutes that gives provisions and rights that protect employees. The law recognizes several instances of employee dismissal as unfair and unjustified. For instance, the employer should not dismiss an employee with no good reason (Weir 2003, p.11). They should also follow the provided procedure if for any reason they want to dismiss their employees. Also, the law provides that the employer should refrain themselves from dismissing employees from unavoidable reasons like maternity leave. Constructive dismissal is also provided for by law. It is considered a bleach of contract if the employer does any of the following: harassing, humiliating or victimizing particular members of staff altering the employee’s job specification or contract terms without consultation changing the job location at short notice excessive disciplinary actions such as demotion Falsely accusing an employee of misconduct. (Law on the Web 2011). If for any reason an employee feels that he or she has been dismissed unfairly, they can put up a claim in an employment tribunal where they can be compensated. Unfair dismissal attracts a maximum compensatory reward to the employee of ?65, 000 and ?11, 400 for a basic award. The law has described certain dismissal phenomenon as automatically unfair and therefore if dismissal falls into this category; the law automatically recognizes its circumstances as unfair and reliable for compensation (Weir 2003, p.11). Such includes dismissal cases that are related to trade unions where the employees fails or agrees take membership, participate in the activities of the union. If the employees falls in the selection for redundancy for an inadmissible reason, that it automatically recognized by employment law as unfair dismissal and the employee in question can demand compensation. As mentioned above. If the employer dismisses an employee the basis of pregnancy, that is an automatic unfair dismissal and is subject to compensation under the provisions of employee legal statutes. In the same regard, the law assumes that a dismissal exercise is potentially fair if the dismissal follows the incapacity of the employee following such issues as illness or incompetence. If the conduct of the employees is questionable in matter regarding time keeping, drug abuse and such uncouth behaviors, their dismissal is identifiable under the employment law as potentially fair(Weir 2003, p.11) . When an employee is convicted in a court of law for law breaking, continued keeping him or her as an employee is unlawful. This means that their dismissal is quite fair. As mentioned earlier, redundancy that is not constructive is potentially fair as a dismissal reason. Protection against work place discrimination Many governments have relentlessly attempted to curb the vice of any form of discrimination in almost every sector. This has been actively realized through the devising of laws that discourage this vice. Discrimination in work place has been strongly condemned and employment law provides that employers should not discriminate employees based on race, gender, colour, family situation, sex, age, religious beliefs, nationality, ethnic background, sexual orientation, disability or pregnancy (Francesconi & Gosling 2005). It also requires employers to treat their part-time and full-time employees equally in terms of the salary payment, circumstances of work and the working environment (Francesconi & Gosling 2005). The Employment Equality (Age) Regulations 2006 ban discrimination in terms of age during recruitment, training or during promotion. It also bans unjustified retirement age of below 65 years (Law on the Web 2011). The Regulations provides employees with the right to request to work past their retirement age. In the same line, it is required that the employer should issue a six months retirement notice to the employee so that they can plan well for their retirement. Additionally, the Regulations give old employees the right to claim unfair dismissal by removing the stated upper age limit for a person to claim unfair dismissal (Law on the Web 2011). They also ensure that employees enjoy pay and non-pay rewards depending on the time of service to the company by the employee. Conclusion Employment law is an integral part of the legal statutes that runs a country. The interest of employees is a vital issue that should not be left in the hands of the employers. It is for this reason that many countries have implemented laws that protect the interests of the employees as compared to theory independent or self-employed counterparts. In UK, several statutes have been realized all in an aim to represent the interests of the employees actively and conclusively. References. Bell, A. & La Valle, I., 2003, Combining self-employment and family life, The Policy Press, viewed 15 December 2011, Burchell, B., Deakin, S & Honey, S 1999, The employment status of individuals in non- standard employment. Department of Trade and Industry. Deakin, S. & Morris, S 1998, Labour Law, Butterworths, Oxford. Francesconi, M. and Gosling, A., 2005, Career Paths of Part-Time Workers, Report to the Equal Opportunities Commission, EOC Working Paper Series No. 19. Manchester: EOC Harvey, M 2001, Undermining construction, Institute of Employment Rights, London Law on the Web 2011, Employment Law, viewed 15 December 2011 Low Pay Commission, 2007, The National Minimum Wage Low Pay Commission Report. Rose, M 2003, Good deal, bad deal? Job Satisfaction in Occupations. Work Employment and Society, 17(3), pp. 503-530. TUC 2000a, Working Time Regulations - Congress motion, viewed 15 December 2011 Weir, G 2003, Self-employment in the UK Labour Market. Labour Market Trends, 111(9), p.11. Read More