Employment Law - Research Paper Example

?Topic Under Employment Rights Act 1996 s. 230, an employer is defined as the person who hires under Contract of Employment its workers as organization’s human resources that will be tasked with roles and responsibilities in exchange for salaries and is subject to the company’s regulation, including time of office, and other laws government policies on labour relations (Emplaw Online, 2012). Pre-requisites for the formation of a ‘contract of employment’ To complete the requisites of contract of employment, the Santander employee should have this contact in writing and must be fully understood that the employee will work in accordance to the nature of the job in behalf of the employer (National Archives, 2012). The workplace will be specified in the contract based on agreed amount of salary that will be paid in exchange of the services rendered. The signing of the contract will bind and form as employer and employee relationship. This can be outlined below (National Archives, 2012): Type of work – the nature and description of work should be clearly indicated in the contract as this is what is expected of the employee to perform within a specified duration (National Archives, 2012); Workplace – this is the site where worker is expected to perform his tasks and obligations in accordance to contractual terms and this be the place of origin in case he will be allowed to undergo a business trip. In case the work covers a city or a town, the place where he travels within will be considered as his workplace too (National Archives, 2012). Date when work commences – the date of employment starts from the date he is specified to report to work. In case of impediments when worker can’t assume the task as soon as possible, the worker must inform the employer and in case there was absence of information, the employer may terminate the contract of employment (National Archives, 2012). Additional provisions – other terms that are significant to the nature of the job (National Archives, 2012). Information duty – the employment contract should also contain information such as those involving collective agreements determining work conditions; date of delivery of salary; the working hours or schedules; and other matters in relation to the nature of the job (National Archives, 2012) Trial period – the employer may offer a trial period in the employment agreement not longer than 3 months following the commencement of employment’s relationship (National Archives, 2012) Importance of “statutory requirements” and “Implied terms” The employment contract will also stipulate anent implied terms of service based on the set of mutual obligations for both employer and employee that are maybe set in a written statement of basic employment particulars stipulated under ERA 1996. S .1 (Emplaw Online, 2012). Some of the implied obligations of an employer are stipulated under the ‘equality clause’ to ensure that workers will not be subjected under all forms of discrimination, that they’d be able to observe custom of the trade and that they will be able to perform their common law duties for a safe environment (Emplaw Online, 2012). Part of these implied obligations is to uphold mutual trust and confidence among workers (Emplaw Online, 2012). The statutory requirements are clearly outlined in labour laws and policies of the country. In case there is breach of contract and illegal dismissal or there is unfair dismissal, this will be ruled by the Act of Parliament and dealt with by employment tribunals not by the courts (Emplaw Online, 2012). Unfair dismissal happens when there is breach of contract or there is wrongful dismissal. This is a new concept integrated in Great Britain’s labour policy after the legislation of Industrial Relations Act and in ERA 1996 Part X, 94 and 135 (Emplaw Online, 2012). Legal protection afforded to employees by ‘Transfer of Undertakings’ legislation Labor laws in UK have also assured that employees’ rights are protected under Transfer of Undertakings Regulations of 2006 (TUPE), or when a business is subjected into transfer. The regulation aims at ensuring that employees will not be illegally dismissed from work due to business transfer unless there is sufficient reason to warrant termination (National Archives, 2012). It also protect employees from possible downgrading of terms and conditions before and after the transfer provided there are legal organizational, economic and organizational causes of the transfer; and, sufficient consultations and information are afforded to the employees through its representatives (National Archives, 2012). In case of sale of company’s share, the transfer will not affect the contractual obligations of the company unless there is actual sale of assets or when assets are subjected to lease (National Archives, 2012). Gender Rights: Implication of the Equal Pay Act In a recent case at Santander company, a female worker filed a complaint in its Human Resource Department alleging that her salary is lower than her male colleague whom she said has served similar length of years and qualification. Under the Equal Pay Act, religion, sex, racial, and disability discrimination are discouraged and the Act encouraged companies and employees to hire and pay workers commensurate to the nature of their jobs and in accordance to the provisions of Wages Act 1986. Burrows & Monnet ( 2012) pointed that the failure of capitalists in Europe to totally enforce equal pay for men and women is accordingly the most invidious form of discrimination . If every all workers value is expressed in monetary terms, the women are still regarded as still undervalued by corporate leaders and management (Burrows & Monnet, 2012). True, like men, women have become equal partner for economic development and in meeting household needs but the persistent disregard of companies to salary women equal to that of men based on the nature of their jobs. If male and female’s capacity and terms of work are similar then why women’s labour contribution be regarded as lower or underestimated than that of men? (Burrows & Monnet, 2012). Researchers opined that their finding simply reflect that there are still women who workers who does not receive equal pay across the European Union. It can inferred therefore that the law Equal Pay Act is disregarded by companies and is not enforced genuinely. Burrows and Monnet (2012) bared that in 2002, the pay gap between men and women workers are 81%. At a macro level, there is a need for the government to improve its commitment to Equality Agenda and restudy the European Employment Strategy from the European Council to address the equal pay gap. In this context, if Santander company fail to address the complaint of its woman worker, the employee can raise the issue to the Employee Tribunal and seek legal resolution using the Equal Pay Act of 2010. The law codify existing policies and regulations founded advocacies and laws that render discrimination in workplaces as illegal and a violation of human rights acts in Great Britain. Equality in the workplace is not only about equal pay for work rendered but also equality in matters of relations within the company or industry. Henceforth, any discrimination in sex, religion, beliefs, and the like that may victimise the workers is unlawful. Evaluate the success of measure to promote equality in the workplace in terms of gender and ethnicity The policy of anti-discrimination has upheld the rights of men and women to work as co-partner in building the national economy (Burrows & Monnet, 2012). Under the present labour policy, women can now exercise their right to earn and to enjoy the fruits of their labour to sustain their economic needs (Burrows & Monnet, 2012). The law provides that legal remedies can be availed thought the labour court and the issue, if experienced at the workplace, can be deliberated during in collective bargaining when workers can open up their problems and concerns with the employer (Burrows & Monnet, 2012). The national laws also promote multiculturalism and diversity in workplaces, hence, promotes non-discrimination on the basis of ethnicity or nationality (as other workers are migrants in Great Britain (Burrows & Monnet, 2012). The law clearly stipulated that workers are allowed to enjoy the right to access for communication services, information, accommodation, financial supports through insurance and micro-finance as supports, entertainment or recreation, and other services for the enhancement of their skills and capacities as workers (Burrows & Monnet, 2012). The latter meant that workers have the right to avail training and seminars for their welfare and professional development (Burrows & Monnet, 2012). Health and safety in the workplace with civil and criminal law The right to health and safety of every citizen in UK is promoted and protected under the Civil Rights law of the country (National Archives, 2012c). Under its labour policy health, safety and welfare of employees are held paramount, and such include regulation in the use of prohibited drugs or substances in workplaces (National Archives , 2012c). Safety is the number one policy of the company and the priority of every employee. This includes the use of safety gadgets at work, in the case of industries, and controlling the use of explosive or flammable or dangerous substances (National Archives, 2012c). Noxious odor or emissions from the industry or company is also prohibited. All companies or employers are expected to adhere to these policies to sustain and improve the standards of companies in dealing with their health, safety and their welfare (National Archives, 2012c). The policy also made it clear that those who will be caught involved in the sale, use, proliferation of dangerous substances, illegal drugs, and the like will be held criminally liable for the offense committed (National Archives, 2012c). Proper sanction will be accorded to those who are responsible in the commission of thereof (National Archives, 2012c). The policy is also designed to prevent or mitigate the impacts and risks of workplaces. Health and Safety Act imposed responsibilities on company or employer to ensure that workers are safe and in maintain good health while at work (CompactLaw, 2012). In case the employer disregarded this law, he can be criminally prosecuted in the Magistrate or in Crown Court. In the absence of working practice, an employee may also sue the employers for any personal injury or by corporate manslaughter (CompactLaw, 2012). Aside from healthy and safe working place, the employer must also take the responsibility of developing safe and plant machinery and safe premises so that employees with disability can also work with ease and care (CompactLaw, 2012). The Health and Safety Act cover the Management of Health and Safety at Work Regulations 1999, Workplace Regulations 1992, The Provisions and Use of Work Equipment Regulations 1998, The Manual Handling Operations Regulations 1992, Personal Protective Equipment Work Regulations 1992, The Health and Safety Regulations 1992 and other pertinent regulations (CompactLaw, 2012). To cite an example, Mr. Tryidoor worked in a company as a security officer and was sent to a client. During his shift, the place was attacked by band of robbers and Tryidoor was among the hostages held by bandits. Although Tryidoor acknowledged that the place has been frequented by robbers in many occasion, thus, the hiring of security personnel, but Tryidoor interposed that the management was negligent too by the fact that the company left the security personnel no access to CCTV’s use; the area where criminals previously barged was not covered by CCTV; though the same area has been used by robbers as their passage but the same was unrepaired; and there is no panic alarm linked to police station given to security worker. Can Tryidoor sue his employer and seek for compensation for the injury he sustained as victim of the robbers? Although risk is associated in the nature of Tryidoor’s job but the it demanded under Health and Safety law that employer must conduct thorough assessment of the issues, threats and vulnerabilities in the workplace where his employee be deployed and be assured of safety. Tryidoor can alleged all his observations to the tribunal and argue that his employer failed to provide secure workplace. He can also mount civil action against his employee and its client for the outright violation of Management of Health and Safety at Work Regulations 1999 so that he can indemnify himself from the cost he incurred for hospitalization, in case the management was negligent of his fate and his condition as a wounded personnel in that attack. The law is clear from the outset that all problems that will arise relating to health and safety can be collectively discussed with the management and in if not resolved; the issues can be brought to the Employment Tribunal for legal remedies (National Archives, 2012c). This health and safety safeguard for employees provided the framework of ensuring that they will be working in a good working environment. The management should have carried risk assessments prior to Tryidoor’s deployment including an accounting of work tasks and other factors associated in the nature of his job. Evaluate the evolution of the union legislation The organization of trade union and the passage of the British trade-union law are founded on the 'immunities' sourced from the common law’s application. The policy was established in 1870s and are amended or consolidated in the 1900s (Moher, 2012). Labour experts explained that the law protected them from conspiracy and accorded to them their legal right to express their problems, sentiments, and issues through peaceful pickets, as well as, protected them against the dangers anent to suits in case of breach of contract during industrial disputes (Moher, 2012). The series of strikes from the 1950s to the 70s pertaining to government mismanagement and industrial concerns were terminated when Prime Minister Margaret Thatcher enforced anti-union laws in the 1980s (Moher, 2012). The close-shop was systematically terminated and this was replaced by imposed cumbersome membership that used ballot-based voting before an industrial rally or action can be staged (Moher, 2012). The immunity from expensive damages in legal suits was also removed and the law likewise dodged the right to picket. The late part of 1990s showed that the new labour laws improved individual rights of British workers, increased wages, and protected them against illegal dismissal (Moher, 2012). However, labour laws have not completely addressed the problems of the issues of collective rights and resisted European Union initiatives for this. Legislators however believed that the repealing the anti-union laws is unrealistic (Moher, 2012). Some recommended that it might be legally wise to accept the value of membership ballots but there must be an amendment of the Ballot Act and introduce a constitutional resolve on direct enforcement of collective agreements with clear rights and obligation of trade unions (Moher, 2012). Importance of the ‘collective agreement’ Collective agreement is a class, continuous, flexible and dynamic process of partnership in managing trade union. The subject often here is the contract of employment and the relations between workers and employer (National Archives, 2012d). This is a very significant method of regulating the relations between workers and employers (National Archives, 2012d). Through this, they are able to negotiate and deliberate about issues pertaining to wages, humane condition of works, administration or enforcement of agreements, and a way of resolving labour-management conflicts (National Archives, 2012d). There is healthy collective bargaining agreement when both parties discourse in goodwill; understanding and mutual trust (National Archives, 2012d). Under the general processes, the requisites of collective bargaining agreement are presence and recognition of bargaining agents, matter and level subject for bargaining agreements, and the scope and coverage of agreement (National Archives, 2012d). A strong collective union is essential in agreements. Analyse legislation limited Trade Union action As the government is conservative on labour unionism, the parliament passed laws that that contravenes the existence and unions (National Archives, 2012d). At the height of Prime Minister Margaret Thatcher’s administration, union rights were suppressed and close-shop method was ruled out and was replaced by regulated membership of trade unions right by imposing ballot-based voting before they are able to decide to stage strikes (National Archives, 2012d). Those who perceived that they are induced to join union action may apply to court for an order under the law. The union is no longer immune from expensive damages in case employer will sue them for the damages incurred due to industrial strikes (National Archives, 2012d). Although their rights are extolled and they are now protected from unlawful dismissal from work, but still the collective rights of labour unions remained untackled by the parliament (National Archives, 2012d). The law further stated that a member of the union reserve the right not be unjustifiably discipline by the union and has an entitlement to avail proceedings in case of right infringement that require some payment of damages (National Archives, 2012d). There are legal procedural requirements in this proceeding. Evaluate the political role of trade unions Trade union is a labour organization advocating and advancing their political rights as workers and partners for economic development of a nation. They are not just mere social capital (National Archives, 2012d). They are human resources imbued with civil rights, responsibilities, obligations, and are large contributor in the macro and micro-economic dynamism of the state (National Archives, 2012d). In politics, workers wanted to be represented in the parliaments where major decision-makings are undertaken by policy-makers (National Archives, 2012d). They seek for legal remedies, advocate for their rights and welfare, and demand for comfortable salaries commensurate the two services rendered to industries or companies (National Archives, 2012d). As political beings, they are constantly engaged in the discussion of social issues that are directly affecting them such as inflation rates, unjust working condition, labour-related disputes, and the need for more humane environment of their respective places (National Archives, 2012d). They are constantly in a negotiation with employer for better working conditions (National Archives, 2012d). References Burrows, N. & Monnet, J. ( 2012). Equal Pay for Equal Work: The Impact of European Law (Draft), University of Glasgow, Web. < http://ec.europa.eu/education/programmes/llp/jm/more/confgender03/burrows.pdf > Accessed: 12 December 2012. CompactLaw (2012). Health and Safety at Work. Compact Law Ltd, UK. < http://www.compactlaw.co.uk/free-legal-articles/health-and-safety-at-work.html > Accessed: 12 December 2012. Emplaw Online (2012). Employer definition Emplaw Online Ltd., UK < https://www.emplaw.co.uk/lawguide > Accessed: 7 December 2012. Moher, J. G. (2012). Trade Unions and the law – history and a way forward? History and Policy: Connecting Historians, Policymakers and the Media. < http://www.historyandpolicy.org/papers/policy-paper-63.html > Accessed: 7 December 2012. National Archives (2012)The Transfer of Undertakings (Protection of Employment) Regulations 2006 No. 246. Regulation 7. Legislation.gov.uk. UK. Web http://www.legislation.gov.uk/uksi/2006/246/regulation/7/made Accessed: 7 December 2012. National Archives (2012b). Disability Discrimination Act of 1995. Legislation.gov.uk. http://www.legislation.gov.uk/ukpga/1995/50/contents. Accessed: 7 December 2012. National Archives (2012c). Health and Safety etc. Act 1974. Legislation.gov.uk. http://www.legislation.gov.uk/ukpga/1974/37/contents. Accessed: 7 December 2012. National Archives (2012d). Trade Union and Labour Relations (Consolidation)Act 1992. Legislation.gov.uk. http://www.legislation.gov.uk/ukpga/1992/52/part/I/chapter/V Accessed: 7 December 2012. Read More