Labour law and labour market regulation - Essay Example

?Employment Law Question a) In the United Kingdom, the Employment Rights Act expressly provides that unless an employee expressly repudiates the employment relationship, before any dismissal, the employer must give a reasonable notice after the employee has worked for a month. If it is after two years, the employer must give sufficient but fair reason for dismissing the employee and make payment to the dismissed employee. This means that the employment contract whether in written or implied terms must be terminated only according to the provisions and the terms of the employment agreement. Under Section 3 of The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, employees on fixed term employment like Joe are entitled to equal and same treatment as those employees that are on permanent basis and cannot just be dismissed without following the procedure set by the law. In the case of Wiltshire County Council v NATFHE and Guy,1 the court was faced with the question of determining whether a part-time contract was for a fixed period or not. It involved Ms Guy who was employed at s a teacher and attended some teaching lessons but later the course was removed due to reasons such as under subscription amongst others leaving her without employment. When her contract was not renewed she complained of being dismissed unfairly claiming that she was protected by the Employment Protection Act 1978 which in its strict interpretation envisaged that hers was a fixed term contract The appeal court held that her contract was for a fixed term and the contract subsisted even if she had been technically dismissed. Stating that a fixed contract is one in which there was a defined beginning and end. Therefore, basing on the Wiltshire case, Joe can claim unfair dismissal on grounds of discrimination after which the case will be taken to a tribunal for determination This therefore means that there are certain provisions that must be met that include giving the employee the mandatory notice period required in order to terminate the contract and the steps to be followed in the termination process.2 The employer can only terminate the contract for reasons amongst them non-performance of duties, job elimination and misrepresentation amongst other reasons and must be written in a statement to the employee.3 The employer is therefore required to pay their employees there severance pay or any other form of financial consideration that may be entitled to the employee. The termination of the employment of Joe must not be based on discriminatory reasons and therefore in any sort of remedy sought; the courts of law will determine the reasons for the termination of the employment. If Joe had an individual contract with his employer or was covered by a collective bargaining agreement, his remedies and compensation will be covered under the stipulations of that agreement that subsisted before the termination of the contract. In a jurisdiction such as that of the United Kingdom, the courts or the tribunals can hear the cases brought for wrongful termination of the contract of employment. If proven that the contract of employment between Joe and that of his employer was wrongfully terminated, the court has remedies that it can give Joe.4 One remedy available to Joe is that he can be reinstated back to the position or job he held previously before termination of the employment. The courts may also order for monetary compensation to Joe for the wrongful dismissal that will be calculated commensurate with what he previously earned.5 Question 1 (b) Dismissing an employee who has had a long-term history of illness or sickness is one of the major difficult decisions employers have to make when considering terminating the employment of a sick employee in the United Kingdom.6 An employer is entitled to dismiss but fairly an employee who is absent from duty due to sickness that may be long-term in nature but there is a caveat that they must demonstrate that they have acted in a fair, sensitive manner.7 This means that they must consult the employee as well as consider all the available alternatives that were available before the dismissal. If at all, Deborah feels that she was unfairly dismissed from employment due to her illness, all she needs to prove to the court is that the procedure to dismiss was not followed and that the reason for dismissal is not founded on conclusive medical evidence. The conclusion must bear in mind such factors such as the type of the job, the size and resources available to the employer, duration of absence and if there was an alternative rather than dismissal. There must also be proof that the termination was done in accordance with the law and that adequate notice was offered to the employee before the dismissal was carried out.8 Deborah may be entitled to a statutory notice pay at full rate of the pay, which is equitable to one week’s pay for up to two years of employment, and a further one-week for every year of employment up to a maximum of twelve weeks. Deborah may also opt for a compromise agreement with the employer to terminate the employment that benefits both parties to it mutually.9 Further, Section 212 (3) of the Employment Rights Act protects the employee from unfair dismissal from work in that it provides that any week during which the employee is absent from work due to a temporary cessation of work of not more than twenty sis weeks is counted as an employees continuous employment period. In Hussain v Acorn Independent College Ltd EAT/0199/10 the Employment Appeal Tribunal (EAT) followed an earlier finding in Ford v Warwickshire County Council10 to find in favour of an employee who was at some times not involved in active employment or work. This means that the requirements of s.212 (3) (b) are enough grounds for Question 1 (c) As a part time agency nurse, Iris is entitled to many employment rights but have different working terms as those that accrue to ordinary employees.11 As an agency worker, the contract that Iris has is that with the agency who must pay her dues even if the hiring company has not met its financial obligations and therefore it is important that the employee is aware of the contracts that he has signed. They are therefore entitled to certain employment rights such as the national minimum wages and all the privileges that accrue pursuant to the Agency Worker Regulations.12 The Agency Worker Regulations that are applicable in the United Kingdom gives the agency worker in this case Iris the right to the same basic working and employment conditions but are only applicable to conditions that relate to pay and working time. As a part-time agency worker, Iris should not be treated differently from other employees and the law requires that you are offered similar benefits and rights. This means that Iris cannot be dismissed because she is part-time or made a complaint about unfavourable treatment amongst other reasons. Iris can therefore seek remedies from the employment agency that recruited her which has an obligation to give her a reasonable job with an almost equal pay that she was getting from the hospital that hired her. Her claims as an agency part-time nurse do not lie with the hospital but her contracting agency. Question 2 This kind of protected industrial action by Linda and her trade unions fall within the arm bit of the Chapter V of the Trade Union and Labour Relations (Consolidation) Act 1992, which describe such an act as a concerted stoppage of work.13 In this case, Linda has refused to do or perform certain functions as expected by the employer as well as refusing to co-operate with the employer. From the onset, it is important to note that the stoppage must be due to a dispute between the worker and the employer and be void of any secondary actions. It must also be void of any acts that can be described as unlawful picketing and should be after a secret ballot that has followed a certain procedure and a timescale pursuant to Section 4 of the Employment Relations Act 1999 The law in the United Kingdom expressly allows members who are workers or employees to join trade unions that usually take care of their interests at work.14 This includes having duties such as the negotiation of agreements with employers on the pay and the conditions of work as was held in Young, James and Webster V United Kingdom15, discussing the concerns of the members and handling any disciplinary matter that may be brought forward.16 This means that as a worker, Linda is allowed to participate in an industrial action as proposed by her union as long as she can prove that the ballot was properly organized.17 The actions by Linda and her trade union may force the employer not to pay for the work done or sue for breach of the contract between the employee and the employer. It should be noted from the onset that mere taking part in an industrial action as called by the trade union will not amount to breaking the period of continuous employment. It is important that Linda becomes aware that in computing her pay, the employer is likely to deduct her pay for the period of absence and the statutory redundancy pay. Linda may have rights against C3 if she can prove that the industrial action called by her trade union was because of a properly organized ballot, and that it is a trade dispute between workers and their employer in line with the terms of employment.18 It must also be proven that an adequate notice was issued for the industrial action and that the employer received it seven days prior to the actions. It is also implied that Linda can claim for remedies for unfair dismissal at an employment tribunal if it can be proven that she participated in the industrial action at a time within twelve weeks after the action began. However, C3 may be right to dismiss Linda if she participates in the industrial action twelve weeks after the employer has made efforts to settle the dispute. Linda must be aware that she may be dismissed by C3 for taking part in the industrial action if the trade union that organized it did not organize a proper ballot and it did not give the employer adequate notice for the balloting by members or the industrial action. An action called by a union that does not have an authority to do so is null as well as that which goes against the provisions of industrial action law. Therefore, taking part in an industrial action that breaks the regulations can result into dismissal and Linda and her fellow employees cannot claim for remedies based on a claim for unfair dismissal.19 C3 may also take an action by punishing Linda through the partial or total deduction of the wages or the salaries that should be paid to the employee by working out by the days not worked by the employee. In the United Kingdom, the Employment Relations Act 1999 argues that a dismissal will be deemed unfair when the employee takes part in a protected industrial action and that unless it is official and lasting less than eight weeks, the law that applies is that before 1999. Linda may have the right to bring a claim for unfair dismissal when at the time of the dismissal she was taking part in an unofficial industrial action. The dismissal for taking part in a protected industrial action also remains unfair if Linda can prove to the court or the tribunal that the industrial action has lasted eight weeks and the employer has not made any effort in order to address the dispute.20 In filing for a complaint based on unfair dismissal, Linda must be aware of the fact that the right to complain of unfair dismissal is only removed from employees who were taking part in the industrial action at the date of the dismissal.21 This is a question of fact and that the test to be applied is to focus on what the employee did and not the motivation for it as was held in the case of Coates v Modern Methods and Materials Ltd.22 If the dismissals are proved selective and the tribunal proves that certain employees were selected for re-engagement and on the prima facie case it is found that the employer was unreasonable in dismissing the employee, it may be deemed as unfair dismissal.23 In this case the courts may order an award of damage based on contributory fault on the part of the employee or may all the same order for re-instatement of the employee if no fault is found on her part or a tribunal may be formed to determine the fairness of the dismissal. The English labour law on industrial action further provides that the mere threat to take part in an act describable as industrial action does not in itself amount to taking part in the industrial action but excludes those employees who have already joined an existing industrial action. In summary concerning the dispute between Linda and C3 in pursuance of the right to industrial action, it is important to take into consideration the rules surrounding unfair dismissal. When the industrial action is deemed as official, the dismissal becomes automatically unfair if the reason for dismissal is the fact that the employee took part on protected industrial action and the dismissal took place within eight weeks of the day on which the employee started to take protected industrial action. In addition, it must be proven that the dismissal took place after the expiry of that eight-week period, the employee was still taking place in the industrial action, and that the employer failed to take reasonable steps to resolve the dispute. In deciding whether the employer in this case C3 has taken reasonable steps, the tribunals will have regard to strict compliance with the laid down in the terms and conditions of employment and whether after the start of the protected industrial action either party had offered to commence or resume negotiations or attempted procedures aimed at resolving the labour disputes. The settlement for Linda in case of unfair dismissal should be geared towards reinstating her or re-engaging her services and no hearing at the tribunal should take place when there are attempts at conciliation.24 To achieve this, Linda will have to properly justify her dismissals as unfair according to the provisions of Section 16 of the Employment Relations Act 1998 and the instances listed on the Fifth Schedule. Bibliography Arup, C. 2006. Labour law and labour market regulation: essays on the construction, constitution and regulation of labour markets and work relationships. Sydney: Federation Press. Blanpain, R., Greg Bamber, and Philippe Pochet. 2010. Regulating employment relations, work and labour laws: international comparisons between key countries. Alphen aan den Rijn: Kluwer Law International. Campbell, D, and Christian T.C. 2011. Legal aspects of doing business in Europe. Huntington, NY: Juris Pub. City Law School (London, England). 2008. Employment law in practice. Oxford: Oxford University Press. Conaghan, Joanne, Richard Michael Fischl, and Karl E. Klare. 2002. Labour law in an era of globalization: transformative practices and possibilities. Oxford: Oxford University Press. Coates v Modern Methods and Materials Ltd (1982) ICR 763 Dickson, B. 2013. Human rights and the United Kingdom Supreme Court. FL Memo Ltd. 2006. Employment 2006: law and practice, human resources. London: FL memo. Heyes, J. 2001. Labour administration in the United Kingdom. Geneva: International Labour Office. http://books.google.com/books?id=sw5YAAAAYAAJ. Meade, J. E. 2012. Wage-fixing. Vol 1 Vol 1. London: Routledge. Sickness, disability and work: breaking the barriers Vol. 2, Vol. 2. 2007. Sickness, Disability and Work: Breaking the Barriers. Paris: OECD. P. 162 Stranks, J.W. 2010. Health & safety at work an essential guide for managers. London: Kogan Page. Smith, I. T., and Gareth, T. 2007. Smith & Thomas' employment law. Oxford: Oxford University Press. Turner, C. 2011. Key Facts Employment Law, Third Edition. Hodder Education. United Kingdom Trade Union and Labour Relations (Consolidation) Act 1992 United Kingdom Gov. 2013. Guide, Dismissal, Your Rights. [Online] Available at: [accessed October 15, 2013] United Kingdom Gov. 2013. Guide, Joining A Trade Union. [Online] Available at: [accessed October 15, 2013] United Kingdom Employment Rights Act 1996 United Kingdom Employment Relations Act 1999 United Kingdom Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, Wiltshire County Council v NATFHE and Guy [1980] IRLR 198 (CA) Hussain v Acorn Independent College Ltd EAT/0199/10 Ford v Warwickshire County Council [1983] IRLR 126 HL Young, James and Webster V United Kingdom [1981] IRLR 408 Read More