The Employment Rights Act of 1996 - Essay Example

? Question One: The employment rights act of 1996, section 1) de s that an employer has to provide a statement to an employee concerning the particulars of his or her engagement with the named employee. Section 1 part 2 of the same act denotes that the statement must be in written form, and an employer can give such kind of a statement in installments. When he does this, he should not take more than two months to dispense all the particulars of the contract to the employee (Cicero and Zetzel, 1999). In the case of MyAnna, Frindus Foods limited gave her a written particular, but which failed to highlight her station of work. However, they gave her an appointment letter that stated her place of work is Telford. This was a strong indication on where her work place was, and the authorities at Telford Company had to respect this statement. Section 1 (2) of the employment rights act of 1996 denotes that an employer can give to employer pieces of a contract agreement, as long as it is done within two months. Part 1 section 4 (h) of the employment contracts act of 1996 denotes that a statement of a contract must identify the location, in which the employer is to work; or places the company authorizes him or her to work, and the address of the employer (Goldsmith, 2012). According to the appointment letter that MyAnna had, she was supposed to work at the company’s headquarters in Telford. This satisfies the requirements of a statement of employment set up by Section 4 (h), part 1 of the 1996 employment act. The contract between Frindus limited, and MyAnna is an ordinary contract, and in case Frindus wants to change the terms of the contract, the management has to consult MyAnna. In the case involving Ferodo limited against Rigby (1987), the company decided to reduce the wage rate of Rigby without his consultation. This was to affect all the employees of the organization, and it was meant to save the company from insolvency. Rigby continued to work, for almost a year before taking the matter to the court. The courts of appeal agreed with Rigby assertions that there was a breach of contract because of the unilateral decision of the company. On appeal, the House of Lords maintained the rulings from the lower courts, granting Mr. Rigby compensation for the shortfall of his wages (Velluti, 2011). The House of Lords held that by continuing to work, it did not necessarily mean that Rigby had an implied consent to the changes in the contract (Countouris, 2007). In the case law involving Autoclenz Company against Belcherz, the Supreme Court of England denoted that an employer has a right to negotiate the provisions of his or her contract. In the case, Mr. Belcher worked for Auto Clenz limited as a valeter. Autoclenz got into a contract with British Car Auctions to provide valeting services, making Belcher and his coworkers have nothing to do. They claimed pay for the hours of work they were idle, and the company refused stating that they were self-employed, as per their contract. The main issue under concern in this case is whether Belcher and his co-workers were employees, or self-employed personnel. The Supreme Court ruled that the valeters were workers within the organization, and therefore had a contract of employment. On this basis, because there was inequality in the level in which the employees would bargain with the company (Mathijsen, 1995), the company had to consult with the workers on any issue that affects them. However in the 2010 case that involved Asda Stores against Bateman, the British Employment Tribunal denoted that an employer had the right to vary the provisions of an employee’s contract, without consulting them, if they had a variation in their employment contract with a clause that gave an employer such kind of powers. In this case, Asda Company sought to change its pay structure by reconciling the salaries of the older staff, with new employees. He consulted, the members of his older staff, and did not consult the new employees, for the company relied on the provisions of their employment contract which gave him the authority to vary the contract without consulting them. In the case of MyAnna, these provisions were not there. MyAnna, can claim that she is a worker of the organization because she has a contract of employment with the company. Section 230 of the employment rights act of 1996 part 3 (a) and (b) denote that an employee is a person who has an employment contract with an organization, or a contract that is either implied or expressed with an organization (Pascale and Gioja, 2000). The contract can either be orally negotiated, or under a written statement. Due to the legal rights she has concerning her ability to re-negotiate her terms of employment, she can refuse the changes in the contract that the company makes. Her contract agreement was to work at Telford, between 9 am to 5pm, and the organization does not have any right to change this without her consent. In regard to this case and the various statutes examined, we can define a contract of employment as an arrangement that involves an employee and an employer, and the terms contained in the arrangement governs the relationship that exists between these two parties. The employment contract can either be implied or written, and failure to have such kind of an agreement can result to conflicts in the work arena (Pascale and Gioja, 2000). The agreement helps in solving disputes that might arise during the employment relationship. For instance, in the case of MyAnna; the agreement between her and Frindus food ltd provides a legal ground in which she can challenge the decision of the company to vary her contract, in a manner not agreed before. In case the company insists on varying the contract, MyAnna can file a suit against the company for breach of contract. Chances are high that she might suffer loss due to the many travels she would undertake, because of the variation of his contract. This is because she would carter for her transportation expenses, and this is denoted when the company felt that it would be cheaper for her, to travel to Glasgow, than for the company to pay for the transportation expenses of the staff in Glasgow (Pascale and Gioja, 2000). This denotes that the company had no intention of paying her travelling expenses, and she can therefore sue for compensation. Question 2: In 1998, the British parliament enacted the Human Rights act, and it became operational in the year 2000. Article 9 of the 1998 human rights act, section (1) denotes that every person has a right of thought, religion and sense of right and wrong. It denotes that they have a right to manifest their religious beliefs, either in worship, evangelism, observance and practice (Ferrari, 2010). Section (2) of article 9 of the human rights act provides restrictions in the manner in which an individual can express his religious beliefs, and they must be in accordance to the set up law. These laws must be for the purposes of ensuring the safety of the public, maintenance of order, and protection of the constitutional rights and privileges of other people. Tamango’s religious belief is Rastafarianism. According to the 1998 human rights act, his beliefs are covered under the act, because it amounts to a sense of consciousness, and belief. On this note therefore, this act allows him to manifest his consciousness and believes, in a manner that will not compromise the public order, security of the state, or breach the constitutional rights of people surrounding him (Ferrari, 2010). Section 10 of the British Equality Act protects a person from suffering discrimination because of their religion, or beliefs. According to section 10 (2) of the Equality Act of 2010, belief refers to any philosophical, and religious acceptance/ trust. Rastafarianism is an aspect of a religious/ philosophical belief, and dreadlocks is a sign that a person is commited to its philosophies (Keeton, 1955). Section 10 (3) of the act denotes that any mention of an individual who shows characteristics of a named protected group, is a reference the religion or belief that the person ascribes to (Ferrari, 2010). On this note, Tamango qualifies to be categorized as an individual belonging to a protected group. In the case law that pitted Eweida against British Airways, the company placed her on compulsory leave because of her decision to wear a crucifix in the course of her work. She sued the company, citing discrimination based on religious beliefs. However she lost the case, both at the municipal courts and the appeal courts (Ferrari and Pastorelli, 2012). She took her case to the Justice Court of the European Union, and in 2013, the court ruled in her favor. The court denoted that her British Airways discriminated her, basing on her religion and she was awarded a total sum of 32000 pounds in terms of damages. The court denoted that British Airways breached her rights as contained in the directive of the European Union that governs employment relationships. Another case that allowed an individual to seek a court redress due to a religious belief is the 2010 case that involves Nicholson, against Granger plc. Company. According to the case, Granger Company selected Mr. Nicholson for purposes of declaring him redundant. This was because of his belief in climate change. The courts held that Mr. Nicholson assertions on climate change are a belief, and section 10 of the equality act protects a person from discrimination by basing on his beliefs/ religion. This belief felt under the category of protected characteristics, and therefore he was allowed to challenge the decision of his company basing on the infringements of his rights. On this note therefore, the courts allowed him to challenge the company at the European Court of Justice, because a precedent had already been set by the case involving British Airways Company, and Emeida. In this case, Tamango can sue the company for violating his religious beliefs. This is because wearing dreadlocks, does not in any way affect the manner in which he carries out his duty, but it is a sign of his loyalty to the beliefs of Rastafarians. He can cite section 10 of the equality act, which protects him from discrimination based on his beliefs. He can further argue his case by using the case law of Emeida, who was a Christian but was prevented from wearing a crucifix by United Airways. Crucifix is a sign of a religious belief, just the way dreadlocks symbolizes a belief in the philosophies of Rastafarians. Article 9, of the European Commission for Human Rights protects individuals against discrimination based on religion and their beliefs (Holland, 2012 and Thomson, 2011). Tamango can also cite apply to the European Court of Justice to seek redress on the infringement of this right. He can use claim that his rights to religious expressions are breached, as provided for in the European Union Charter concerned with human fundamental rights. He can claim relief by using article 22 of the charter which provides for the right to of religious expression (Kidner, 1997). This was also provided for by the court of appeal in the case pitting Nicholson, against Granger. Question Three: In order to determine whether Gustav Blomgren is an employee or a self-employed person, it is important to analyze the kind of contract he has with Frindus Company. In a contract of service, the person employed is an employee, and is entitled to a minimum wage rate, holiday pay, fair dismissal in case of breach of contract, right to be a member of a trade union, and is entitled to a written statement of work. Contract for services on the other hand is used to denote a self-employed person, and the assumptions are that a self-employed person has the capability of taking care of himself; therefore he is not entitled to the mentioned benefits (Blackstone, 1979). Section 230 (1) of the employment rights act of 1996 defines an employee as a person who is working under a contract of employment. The act stipulates that contract of employment is a contract of service, and two parties can make it in an oral manner, or in writing. The Section 230 (3) gives the definition of a worker. It defines such kind of a person as an individual, who carries out his duty as per the provisions of a contract of employment (Fairhurst, 2012). Looking at the case of Gustav Blomgren, he has a written contract that does not specify the number of hours that he has to work. However, the contract is clear that on the 1st of every month, he the management would specify the number of hours he has to work. These provisions satisfy the element of an employment contract. According to section 230 (1), of the 1996 employment rights act, an employee must be under an employment contract. The same is a requirement of a worker as per section 230 (a). For there to be an employment contract, there must be an element of mutuality of obligation, control and substitution. Mutuality of obligation denotes that there must be some agreements between a contractor and a contractee that is not reducible. These negotiations must center on the willingness of an employer to pay a wage, and of the worker to provide a service. In the 1984 case law involving Gardiner against Nethemere ltd, the court ruled that the existence of mutual obligation is an aspect that defines the relationship between an employer and an employee. In the case, the complainants, Gardiner and Tarvener worked part time for Nethemere ltd by sewing clothes for them. These women became pregnant on different occasions, and because of this, they had an arrangement with their company to work at home. Their hours of work were between 5 to 7 hours a day and the company gave them sewing machines. The amount of payment was based on the quantity of the trouser flap they made, but a dispute arose on whether they had a right to holiday pay. However, Nethermere refused to pay, and dismissed them (Klabbers, 2007). The case came before the British court of appeal, and the born of contention was on whether the two women were under an employment contract, and therefore are employees of the company. The court of appeal ruled in the favor of the women denoting that they were employees of the organization because they offered a service, for remuneration, and there was an element of control in regard by the company. This is witnessed when the company only pays for high quality trouser flaps. In the case of Gustav Blomgren, there is an aspect of mutual obligation. This is because he is paid weekly, and entitled for an holiday income, in exchange of his services as a burger machine operator. An employment must also satisfy the element of control. In the 1968 case involving the Minister of Pensions and National insurance, against Ready Mixed Concrete company, Lord McKenna maintained for there to exist a contract of service, there must proof of control, mutual obligation, and consistency with the terms of service (Hardy and Burtler, 2007). Looking closely at this case, Frindus Company controls the work of Gustav Blomgren. The company sets forth his hours of work, on every 1st day of a new month, and he has to communicate it in case he is unable to work on those hours by 5th of the same month. Failure to do this will attract some disciplinary action. This is an element of control, and it satisfies the requirements of a contract of service that McKenna identifies in his historic judgment of 1968 (Kidner, 1997). In regard to these arguments therefore, it is prudent to denote that Gustav Blomgren is an employee of the organization. To support this position further, it is prudent to analyze the court proceedings of Belcher, vs. Autoclenz limited. In the case, the main born of contention was whether Belcher and other valeters were employees/ workers or independent contractors. In this case, the company sought to re-define their terms of contract by stating that they were sub-contractors, and therefore ought to buy their own working materials. The company emphasized that work was not a guarantee to them, and they would only be called upon if there was an opportunity. The court was of the decision that Mr. Belcher and other Valeters were workers of the organization, and entitled to consultations in regard to the re-negotiating of their contracts with the company. The clause denoting that they were self-employed is irrelevant and invalid because it does not stand the test of law (Bagehot and Taylor, 2001). Another case that identifies the employment status of an individual is a case pitting Carmichael, against National power plc. In this case, Carmichael brought a suit against national power plc. They brought this case under the grounds established by the 1978 employment protection act, and they wanted to know if they are employees of the organization, as subjected by the 1996 ERA act (Bagehot and Taylor, 2001). In this case, Mrs. Carmichael was provided with a duty to guide visitors around the power station on a casual basis. There was no specific time for the tours, and it could be done at any time within the day. The advertisement notice denoted that the job was to be a casual job, and in 1989, CEGB agreed to employ absorb them as casual laborers again. CEGB was a predecessor to national power plc. However later on, Mrs. Carmichael filled a suit to the employment tribunal, seeking to have some employment particulars (Arnull, 2006). The tribunal denoted that she was not an employee, because there wasn’t any responsibility from her to provide her services, when she was not working as a guide. On this note, there wasn’t a contract of employment between her and the company. However, in the case of Gustav, he had an obligation to provide his services to the company, and he was under a contractual agreement. He was obligated to attend work from Monday to Wednesday, and failure to perform his duties would amount to a disciplinary action. These are elements of a contract, whereby a breach of the contract, would amount to an individual facing legal suits, for compensation or damages (Bagehot and Taylor, 2001). This case further strengthens the argument that Gustav is an employee of the organization. Question Four: According to section 94 (1) of the 1996 Employments right act, an employer is not allowed to unfairly terminate the employment contract of an employee (Barker, 2012). In the case law involving Belcher against Autoclenz ltd, the courts gave a ruling in regard to the protection of the rights of an employee/ worker. According to the case law, Mr. Belcher plus other valeters provided their services to AutoClenz limited. Later on the, the company got into a contract with British Car auctions, so that they would provide valeting services, making the existing valeters lack work (Barker, 2012). They therefore claimed for holiday allowances, and pay as according to the minimum wage rate. In 2007, the company decided to annul their contracts and sign a new contract with the valeters, to clarify that they were sub-contractors. And they were responsible for providing their own materials of work and that there was no guarantee of work from the company. The valeters sought redress against this decision, and the court of appeal held that they were workers, and an employer cannot change the terms of employment with a worker without negotiating with them. This is because an employer enjoyed undue advantage over the worker (Arnull, 2006). In this case, Frindus does not have the authority to sack Gustav because he refused to accept the contract proposal the company brought forth. The company used intimidation, and as an inferior negotiator, Gustav has protection from the law. Gustav is an inferior negotiator because he is seeking employment from the company, and on this note, the company has leverage over him. When negotiating, the law allows for the inferior party to have an opinion in the negotiations, so that the agreement reached does not in any way inconvenience him (Barker, 2012). This argument is further propagated by the court ruling in the 1987 case involving Rigby against Ferodo. In the case law, Ferodo Company reduced the wages of its employees by 5%, without consulting its employees. Rigby, an employee of the company continued to work, and a year later challenged the decision to the British courts. In their rulings, the House of Lords held that Ferodo could not make such kind of reductions without consulting its workers, and they had to compensate Rigby for the full year of work. Gustav can therefore seek redress from the courts, citing unfair dismissal. For instance, in the 1994 case involving London Borough of Lambeth against Boyo, the House of Lords denoted that any employee, who is wrongfully dismissed from his place of work, can seek compensation from the employer. This case did set a precedent that Gustav can follow. Bibliography: Arnull, A. (2006). The European Union and its Court of Justice (2. ed.). Oxford: Oxford University Press. Bagehot, W., & Taylor, M. (2001). The English constitution. Oxford: Oxford University Press. Barker, D. D. (2012). 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