The Terms of Employment in the UK - Essay Example

?Employment Practice and Law in the UK Inserts His/Her Inserts Grade Inserts (13 12, Outline 1. Introduction 2. Part 1: Contract of employment 3. Part 2: Advice on Human Resource issues 4. Conclusion Employment Practice and Law in the UK 1. Introduction Employment allows the employer get the services of an employee. Their relationship in the course of work could be easy going or experience challenges. A contract of employment could prevent such challenges if written and accepted before the employee commences work. This paper will discuss terms implied at common law into a contract of employment and give an example. The second part will give advice on payment of holiday, working hours and working on holiday. 2. Part 1: Contract of employment. Employees and independent contractors are terms used in the contract of employment. An employee is a person who gives service in place of another in exchange for a salary. Independent contractors resemble employee’s contract but extend service to another. The employee enters into a contract of service while an independent contractor enters into a contract of services. The independent contractors are not entitled to workplace agreement, awards and standards. To differentiate contracts of employment, tests implied by common law are used to determine the relationship. The individual work of an employee and power, together with the command of the employer are assessed. Other tests include: who pays taxed income of the employee and who supplies the resources for work. Another test is if the employee can transfer the services to another employer or cause another contract. Lawyers determine if the employee can benefit or lose financially in the contract (Cabrelli, 2008, p. 7). An example is the case involving “Hollis Vs Vabu Pty Ltd in 2001” (Human rights and Equal Opportunity Commission, 2001, p. 1), the court tested their relationship and saw that their relationship was a contract of employment. Vabu was in control and obtained revenues. Common law causes people to be responsible. It implies confidentiality, being skillful and careful at work. The employer should give a termination notice. The employee and employer should maintain good relations and adapt trust when they work together. Lawyers recommend a written employment contract to define terms of working relationship. New employees need to write a contract of employment so that they obtain specific information on their job description, job title and the relevant terms of work. They will be aware of their expectation, and obtain information on how to exit incase the contract is no longer favorable. A written employment contract can help an employer retains a competent employee. The agreement on the length of time to serve the employer reduces the number of reasons an employee can chose to terminate a contract. The employee is able to retain the employees they have trained. Another advantage is that the employee becomes obligated to maintain confidentiality. The protection of the company secretes goes beyond the contract. The employee cannot reveal secretes of company which could cause unfair competition. An employment contract will get the best employees if they give the best deal (Honeyball, 2012). Moreover, an employment contract is a way of controlling the employees work. The written contract of employment gives specific details on compensation. Besides being used as evidence in disputes, the written agreement can be used to resolve arguments. The contact causes the employer and employee to create a good working relationship as Smith and Baker (2010, p. 66) mention. The challenge with the employment contract is the possibility of the employee being unable to accomplished tasks as agreed. Abrupt termination may not apply because of the agreed length of contract. The employer and employee may have to renegotiate their terms. This is because the funds may not be adequate and could cause financial constrain (Emir, 2012). Another disadvantage is that the employer and employee are expected to follow common law and work in good faith. According to Lewis and Sargeant (2004), any actions that contradict the common law may be considered a breach of contract. 3. Part 2: Advice on Human Resource issues. Jeremy can consult section 230 of the Employment Rights Act of 1996. Jeremy needs clarification about payment of holiday pay to Mike. Phoenix has sub-contracted Jeremy. Mike has worked for fifteen months for Jeremy and demands holiday's pay from Phoenix. Section 230 defines a contract of employment as a person who contracts services. It indicates terms of employment such as commencement date, remuneration, permanent or temporary, working hours, scope of work, terms of leave and if they get holiday pay. An employment contract can be used as a point of reference to Jeremy and Mike. Section 230 states that a person who works for another person who has been contracted is indeed a worker. The terms of employment should be given in the written form within eight weeks after employment. It should contain employment particulars, as it confirms employment to the employee. The written contract becomes a reference for employee’s entitlements and employers expectation. The written contract can act as evidence when a breach of contract occurs. Employees are granted payment on annual leave, maternity and duties outside office that are public (Painter and Holmes, 2012). Jeremy contract with Mike can be described as contract of services. Jeremy who has been granted a contract by Phoenix has hired Mike to work with him. Mike has a contact of employment with Jeremy and not Phoenix. This is because Mike works on behalf of Jeremy under the control of Jeremy. There lacks mutual obligation for Phoenix to exercise control over Mike. Mike was brought in by Jeremy as a worker and there is no agreement on how long they are to work together and the reciprocal obligations are not clear. Therefore, employees by Jeremy under a contract cannot be considered employees of Phoenix Company. However, they are obligated to give services as agreed with the sub-contractor (Davies, 2011, p. 92). Jenny who works as a sales person complains of being denied a holiday which they are entitled to according to the employment contract. Section 230 encourages recognition of entitlement of holiday which is written in the employment act. Workers are permitted to obtain a holiday that is paid from their employer. There is a provision for calculating the employee leave when they work for irregular hours. This facilitates compensation of the entitled holidays. Bank holidays or even public holiday are given a different treatment. The employee is not entitled to a pay during the bank holiday. It is at the employer’s discretion to determine how they will treat the bank holidays when engaging in the employment contract (Stella et al, 2011). In the case of Jenny, the employer had agreed to allow Jenny have the bank holidays. Jenny should request the employer, Phoenix for a discussion about working on bank holidays and the agreement on the contract of employment. They can make arrangement to compensate for the days with another leave. In case they are not in agreement, Jenny should consider it a breach of contract and take the matter to a tribunal. Walter a security guard at Phoenix works five days a week for nine hours night shift. Walter’s doctor recommends change of shift to day time after Walter gets memory lapses. The governmental working hours recommends a one day off and forty eight working hours in a week. The forty eight hours should be considered within seven days. It also recommends that night shift should not exceed eight hours. The eight hours must not be exceeded within twenty four hours of day within seventeen weeks. In a situation where an employee has mental strain, the eight hours should not exceed within twenty four hours of the same day. Section 230 requires the employer to give the employee time off (Busse, 2004). The employee is also entitled to eleven hours of rest in a day. The working time regulations protect employees from being overworked. The regulations allow uninterrupted time for rest. If the working hours are extended, the worker and employer should make a written agreement. Moreover, it is the duty of the employer to record the working hours of the employee. When the working hours exceed six hours, the employee should be allowed a resting period during the working hours. Young workers are entitled to thirty minutes break after four and half hours, while the adult workers are entitled to twenty minutes break. Walter working hours exceed the recommended time. Walter works for nine hours during the night shift. The working hours should be adjusted to remain eight as recommended by the law (Wolkinson and The Msu Employment Law Group, 2007). 4. Conclusion. An employee working under a contract of service is entitled to all the benefits of an employee. An employee under a contract of services should work although they are not entitled to the benefits. Tests implied in a contact at common law determine who has power, gives supplies, pays taxed income and benefits from the revenue. A contract of employment is recommended because it explains all the details in the terms of employment and can be used as a point of reference. In the case of Jeremy and Mike, it is clear that a contract of services is not awarded benefits such as holiday pay. Jenny could launch a complaint for breach of contract since they agreed in the employment contact that she is entitled to bank holidays. The working hours for Walter the night guard can be limited to eight hours a day, and include a thirty minutes break. References Busse, R. C. 2004. Employees' Rights: Your Practical Handbook to Workplace Law, London: Sourcebooks Cabrelli, D. 2008. Law Express: Employment Law (Revision Guide), Harlow: Pearson Education Limited. Davies, A. 2011. Workplace Law Handbook 2011: Employment Law and Human Resources, London: Workplace Law Group. Emir, A. 2012. Selwyn's Law of Employment, Oxford: OUP Oxford. Honeyball, S.2012. Honeyball and Bowers' Textbook on Employment Law, Oxford: OUP Oxford. Human rights and Equal Opportunity Commission. 2001. ‘Hollis v Vabu Pty Ltd [2001] HCA 44 (9 August 2001)’ Legal Bulletin, 2, 5, 1. Lewis, D. and Sargeant, M. 2004. Essentials of Employment Law. Chartered Institute of Personnel and Development. Painter, R., and Holmes, A 2012. Cases and Materials on Employment Law. Oxford: OUP Oxford. Smith, I., and Baker, A. 2010. Smith & Wood's Employment Law, Oxford: OUP Oxford. Stella, W. M., Bernstein, R. H. and Arbetter, B. S. 2011. Employment Law 2011. London: West Group. Wolkinson, B. W., and The Msu Employment Law Group. 2007. Employment Law: The Workplace Rights of Employees and Employers, Oxford: Wiley-Blackwell. Read More