Labour Laws Application Practice and Implementation - Coursework Example

 Labour Law’s Application, Practice and Implementation Introductory Statement: This paper aims to discuss the rights that can be practiced by the employees as provisioned in the Employment Rights Act of 1996. Focus of the paper has been implied on section 1 of the Employment Rights Act (1996). Also, this paper aims to assess the implied terms being implemented in the Common Law followed by its obligations. Furthermore, the aspect of Garden leave will also be discussed in terms of practice in organizations following Common Law. In order to understand an employee’s right to imply law and regulation, to place an appeal against unfair dismissal, a case will be studied thoroughly. Lastly the paper aims to study the maternity rights which are granted to the employees and how they accommodate in the present society. Background to the Context: Employment law has been considered as an integral area of law which has received imperative attention from international law as well. As evident from the provisions associated with the Employment Act, there are many guidelines, obligations, rights and criteria for different cases and their consequences on both for the employee and the employer. Since there is increased number of obligations, it has become a complexity for both the parties to implement relevant provisions in their respective cases. It should be noted that employment law is being practiced in almost every country of world with their alliance to international labor law (Barnard, 2006). Part 1 (a) Rights of Employees under Section 1- Employment Particulars During the period of employment, the employee and the employer both should be aware of their rights and authorities. i. Sub- Section 3 and 4: Where on one hand, it is important for the employer to have complete information and trust of the employee; ii. CONT: it is also very significant for the employee to know what his rights are and to know what he can claim in the case of a conflict with his employer. Employment Rights Act of 1996 clearly defines these situations for both of them. The section 1 of the law deals with the employment particulars and the employment statement. This section of the law is a kind of guideline for the employee to know what his rights are during employment and at the time of termination fair or unfair so they get to know what sort of word and conditions to expect from the tribunal in case of any breach from the employer(Barnard, 2006) Subsection 1 of Section1 states: Where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment” (Gavin Mansfield, 2011, p. 581) Under the statement of particulars of the section 1 subsection 1 of the Employment Rights Act of 1996, any employee is provided with a statement of particulars when he starts any job (Section 1, sub section1). 1 The subsection 2 of section 1 further explains the subsection 1 stating that: The statement may (subject to section 2(4)) be given in installments and shall be given not later than two months after the beginning of the employment (Gavin Mansfield, 2011, p. 581)” The statement of particulars must be given to the employee within eight weeks of the start of his employment (Section 1, Subsection2). Subsection 3 & 4: i. The section 1 of the law basically deals with this statement of particulars, the details and the terms and guidelines for the deal between the employer and the employee. ii. The statement has a list of things entitled, from the name of the employee and the job description to the salary wages and its payment schedule (Section 1, Subsection3 & 4). As stated in the clauses of the Subsection 3 & 4: 3- “The statement shall contain particulars of: (a) the names of the employer and employee, (b) the date when the employment began” 4- “The statement shall also contain particulars, as at a specified date not more than seven days before the statement is given, of: (a)the scale or rate of remuneration or the method of calculating remuneration, (b) the intervals at which remuneration is paid (c)any terms and conditions relating to hours of work (Gavin Mansfield, 2011, p. 581)”2 This is to assure that the rights of the employees are not violated by the employer. If the employer fails to provide the employee with the described particulars as in the statement than the employee has the right to show it in front of the employee tribunal in his or her favor and ask for compensation. Subsection 4, 5 & 6 deals with public offs, flexibility, extra payments, and health etc. Subsection 4- Clause d: entitlement to holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the employee’s entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated) (Gavin Mansfield, 2011, p. 581). The Remedies for not providing the statement of particulars: i. If the employer fails to provide the employee with the statement of particulars, then he is in breach of his duties as stated in Section 1, Subsection 13 of the law of era 1996 and the employee have a successful claim and can take him to the employment tribunal (Government of UK, 2013). ii. In such a case the remedy is that the tribunal is liable for making an award which is the same as the wages of two weeks. The tribunal if consider it just, then it can also make an award correspondent to four week’s pay, but only on its own consent. In both of the cases the award or the amount depends on the week’s pay (Government of UK, 2013).3 Relevant Cases:4 1- Morgan v. The Welsh Rugby Union, Court of Appeal - United Kingdom Employment Appeal Tribunal, January 07, 2011, [2011] UKEAT 0314_10_0701 In this case the court held the complainant redundant according to the laws stated in the Employment Rights Act 1996. 2- 5Religion and Belief Discrimination after Eweida and Ladele, ELA, 4 June 2013, 18.30 A case was filed by an employee who had been facing religious discrimination and freedom at her workplace. Under the Employment Rights Act of 1966 the court held orders in favor of the respondent. 3- Soteriou v Ultrachem Ltd and others [2004] IRLR 870 HC6 In this case the complainant was an accountant at a firm where he worked for 13 continuous years and was terminated without any notice. The court however presented results in his favor and he was awarded with remedies from the organization. 4- Northumberland County Council Vs Mrs. D Thompson, Appeal No. UKEAT/0209/07/MAA7 In this case the organization filed a case against the employee who filed a case of unfair dismissal after 3 months of her termination. The court presented orders in favor of the organization. 5- Anton Las v PSA Antwerp NV, case C-202/118 The complainant appealed that the local laws in Belgium were in breach of the European laws. according to the Emplyment Rights Act of 1996. The court presented orders in favor of the compainant. Part 1 (b) Implied Terms in Contracts Vested by Common Law: Implied terms are usually the default rules and guidelines set by the common law in a contract. The basic purpose of these is to overrule those terms which are self formulated by the employer or employee. Moreover, implied terms are also defined in order to make the deal or business more effective and that a balance or equality is maintained between both the contractual parties. The implied duties for the employers include; i. Providing safe environment for the employees: the common law implies that the employer is liable for providing a safe and healthy environment for its employees. ii. To have good principles as an employer: to set good rules and practices for the employees as an employer. For e.g., paying wages on time, public holidays flexibility of work. (s 96). iii. To provide equality and faith to the employees: to treat all the employees equally and with discrimination. The employer should have faith in their conducts and respect them. The employer is obliged under the common laws to fulfill all these terms implied in the contract otherwise he will be held responsible for the breach of it. These terms are to be implied in all the contracts which are of the same nature (s 96). 9 Relevant Cases: 1) Malloch v Aberdeen Corporation [1971] 1 WLR 158110. In this case the court gave the results in favor of the complainant as the implied terms in the contract were in breach by the Aberdeen Corporation. The dismissal was not in fairly or good faith. Part 1 (c) Garden Leave: Implied Term of Civil Employment Clauses Garden Leave can be explained as the period in which the employee is instructed by the company or organization to stay away from the work, at home for a defined period through a notice. This is due to the sensitivity of the job or being confidential. During this period the employee is paid full wages and other benefit but is bound not to come back to work or to work for another employer (Holland, 2013). The purpose of including the garden leaf clauses in the contract is the protection of the job. Employers assure that if the employee is taking leaf then he should not join any of the competitor employers or should not start his own competing business. This is usually added in the contracts of senior or key employers who are trained and are exposed to the intimate research or findings of the company or its core strategies (Cushway, 2012). Part 2 Section 9 and 10- Unfair Dismissal: Case Analysis11 In order to present some strong advises to Diana it is necessary that we thoroughly analyze her case of unfair dismissal first. We need to know that if Diana was an employee at the restaurant and according to the description of her case, she was a professional employee and had been working at the Tipster restaurant for 2 years prior to her dismissal. The second thing to focus is the dismissal, if she was dismissed without any notice or not. In this regard, Diana was on fixed term contract which means that it can end anytime (as mentioned on the contract) or is for a specific purpose; in both the cases it depends what is mentioned on her fixed term contract and she has to complete her period mentioned on the contract. Moreover, the main focus should be on the reason; why she was dismissed? She was dismissed because she was found drunk in the storeroom of the restaurant. It was due to lack of good conduct and misbehavior. However, she was not provided with any written notice for her dismissal. In light of the laws as mentioned in the Employee Rights Act of 1996, the following clauses are referenced for Diana to prove that it was an unfair dismissal. i. Rights of employer and employee to minimum notice. “(1)The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more: (a) is not less than one week’s notice if his period of continuous employment is less than two years (b)is not less than one week’s notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years.” (Gavin Mansfield, 2011, p. 585) This clearly defines that Diana can approach the Tribunal and can show that the dismissal is unfair. Furthermore according to another clause of the Act: ii. Right to written statement of reasons for dismissal. (1)An employee is entitled to be provided by his employer with a written statement giving particulars of the reasons for the employee’s dismissal: “(a)if the employee is given by the employer notice of termination of his contract of employment, (b)if the employee’s contract of employment is terminated by the employer without notice.” (Gavin Mansfield, 2011, p. 585) These two clauses stated in the Act gives Diana full authority to reach the tribunal and prove that it was an unfair dismissal. Regarding the complaints, the Act further states that: Complaints to employment tribunal: (1)A complaint may be presented to an [F228employment tribunal] by an employee on the ground that— (a) the employer unreasonably failed to provide a written statement under section 92. 12 Relevant Cases: 1- Duncombe & Ors v Secretary of State for Children, December 14, 2009, [2009] EWCACiv 135513 In this case the claimant is a teacher who was on a fixed term contract of 9 years and had been unfairly dismissed by the school before the time mentioned on the contract. The claimant as per the regulations quoted in the Employment Rights Act of 1996 filed a case. The court presented orders in favor of the claimant and the school was asked to pay the remedies. 2- Methodist Conference v Preston (Rev 1) [2013] UKSC 29 (15 May 2013)14 Under the Employment Rights Act of 1996 a complaint was brought forward of unfair dismissal by the Minister in the Redruth Circuit against the Church under the section 94. The appeal was dismissed by the court. 3- Ridge v Baldwin [1964] AC 4015 In this case the House of Lords ordered the Baldwin Committee that they had violated the terms defined in the contract and are liable to pay the remedies. 4- Abergwynfi Infants School Vs Mrs. J L Lones ,Appeal No. UKEAT/0083/10/ZT16 In this case the employer was told to pay the remedies of unfair dismissal to the complainant. Maternity Rights: laws designed for the present society. The Maternity rights to both the husband and the wife are stated in the ‘Employment Rights Act of 1996’ in Section 57Z and section F160. According to these sections the employee is legally allowed i. To have paid leaf and ii. Special attention and flexibility while on work. iii. 57ZB states that: Right to remuneration for time off under section 57ZA:  (1) An agency worker who is permitted to take time off under section 57ZA is entitled to be paid remuneration by the temporary work agency for the period of absence at the appropriate hourly rate. In UK a total of 52 weeks of maternity off is given to the employee, which can be utilized during the pregnancy or at the time of the birth of the baby. The employer is also liable for paying the employee SMP (Statuary Maternity Pay) for up to 39 weeks in the same way as salary (Government of UK, 2013). This all implies when the employee had been working with the current employer for more than 26 weeks. To fathers the paternity leave is up to 2 weeks and 2 weeks of SMP. If the mother returns early to the job than the father can have 26 weeks of additional paternity leave. In both the cases the parents have to qualify for the leave. The reason for designing such attractive rights for maternity employees is to assure proper balance in the society (Government of UK, 2013).17 The husbands can also take off as under section 57ZA; Right to time off for ante-natal care (agency workers)  (1) An agency worker who: (a)a certificate from a registered medical practitioner, registered midwife or registered nurse stating that the agency worker is pregnant. (b) has, on the advice of a registered medical practitioner, registered midwife or registered nurse, made an appointment to attend at any place for the purpose of receiving ante-natal care.” (Gavin Mansfield, 2011) The antenatal leaf is given to both husband and wife and does not only mean medical checkups; it can also be antenatal check up or parenting classes. However father does not have legal rights to get this leave but it is considered a good practice by the government of UK. Previous researches have shown that working parents were not capable of giving attention to their babies because of their jobs therefore the present laws are set to provide both the parents the opportunity to give the required attention to their child at the time of birth (John Campbell McClure Browne, 2008). The employer is also bound to amend the type and schema of work or the working hours if they are considered risky for the pregnant employee. He can do that by finding some alternative work for her, if not then he should suspend the pregnant employee on full pay (Cushway, 2012). Relevant Cases: 1) ADM Milling Ltd v Hodgson UKEAT/0051/07/JOJ18 In this case the claimant who was an employee was dismissed on redundancy while she was on her maternity leave. The court gave orders in favor of the claimant . 2) Muschett vs London Borough of Hounslow UKEATPA/0281/07/CEA19 In the above cited case the appeal was rejected by the court as it did not provide enough evidences for the extension of holidays. Conclusion: All rules and laws are designed for the convenience of the employees and to assure a healthy and balanced working environment for them. The Employee Rights Act of 1966 gives a series of rights to the employees working in UK. All these rights are for the safety and betterment of the employee and for the protection of their job. The description of rights given to an employee under the section 1 of the Employee Rights Act of 1966 has been discussed in the paper with the list of remedies that the employer is liable to pay to the employee if he is in breach of any of those rights or laws. The implied terms are also discussed in the paper along with their obligations. The use of garden clause in the contracts is usually for the protection of the job and its security. It is included generally for the key employees or the senior ones. Furthermore in the light of the laws a few advises have been provided to the employee Diana to prove that she was unfairly dismissed from the job. The maternity rights given to both husband and wife and how they help creating a better society are discussed in the last section of the paper. All these rights ensure sound atmosphere and removes all the insecurities for employees and employers both regarding their jobs and corresponding things. List of Cases Morgan v. The Welsh Rugby Union UKEAT 0314_10_0701 Religion and Belief Discrimination after Eweida and Ladele, ELA, 4 June 2013, 18.30 Soteriou v Ultrachem Ltd and others [2004] IRLR 870 HC Northumberland County Council Vs Mrs. D Thompson, Appeal No. UKEAT/0209/07/MAA Malloch v Aberdeen Corporation [1971] 1 WLR 1581 Anton Las v PSA Antwerp NV case C-202/11 Duncombe & Ors v Secretary of State for Children EWCACiv 1355 Methodist Conference v Preston (Rev 1) [2013] UKSC 29 Ridge v Baldwin [1964] AC 40 Abergwynfi Infants School Vs Mrs. J L Lones, Appeal No. UKEAT/0083/10/ZT ADM Milling Ltd v Hodgson UKEAT/0051/07/JOJ Muschett vs London Borough of Hounslow UKEATPA/0281/07/CEA List of References Austen-Baker, R., 2011. Implied Terms in English Contract Law. Glasgow: Edward Elgar Publishing. Barnard, C., 2006. European Community Employment Law. New York: Oxford University Press. Cushway, B., 2012. The Employer's Handbook. 9th ed. London: Kogan Page Limited. Government of UK, 2013. gov.uk. [Online] Available at: [Accessed 28 May 2013]. Government of UK, 2013. gov.uk. [Online] Available at: [Accessed 28th May 2013]. Government of UK, 2013. gov.uk. [Online] Available at: [Accessed 28 May 2013]. Government of UK, 2013. legislation.gov.uk. [Online] Available at: [Accessed 28 May 2013]. Holland, J., 2013. Employment Law 2013. Oxford: Oxford Univeristy Press. John Campbell McClure Browne, G.D., 2008. Browne's Antenatal Care. 11th ed. Michigan: Churchill Livingstone. McRae, S., 1991. Maternity rights in Britain. Westminster: Policy Studies Institute. Read More