Employment Laws - Coursework Example

Employment Law Introduction: “The purpose of the legislation is to set minimum standards of conduct for employment agencies and employment businessesoperating from premises in Great Britain. These provisions are designed to protect work-seekers and employers using the services provided by an employment agency or employment business” (Employment Agencies Act. 2007). Aspects of employment status: There are basically two aspects regarding employment status, firstly, paid covenanted employees and secondly, agency sponsored workers; therefore the essence would lie in the characteristics of the terms and conditions governing employment, whether on a contractual capacity or as agency worker. If the employee is under a contractual agreement with his employers, he/she is bound by the terms and conditions of the contract, and barring unforeseen circumstances which renders the performance of any terms, untenable or unenforceable; he/she has to strictly abide by such covenants. However in the case of agency workers, the contract would be one that is entered between the agency and the employee and this would form the locus of the employment. The laws concerning agency business is governed by the following Acts : 1. The Employment Agencies Act 1973 2. The Code of Employment Agencies and Employment Business (Regulation) 2007 We shall consider each of these acts as they would affect the employability of persons under the agency system. Definition of agency business: It is first of necessary to define what an employment agency business is about. It could be said to be a business of “providing services (whether by the provisions of information or otherwise) for the purpose of finding workers employment with employers or if supplying employers with workers for employment by them” (Employment agencies. 2006). It is often found that most employment agencies in UK operate under the framework of existing law but there are some agencies that indulge in malpractices that may bring the entire agency business into disrepute. Thus it is specifically to deal with issues that bring about a bad reputation to the business of employment agency that it has become necessary to enforce legal strictures. One of a significant matter governing agency business is that Employment agencies and employment businesses are that, subject in certain exceptional circumstances, they are Prohibited from charging fees from potential work seekers. This is because the law does not wish to make a commercial transaction of just employment seeking, and not work performed for gainful employment. Further, the law lays down certain restrictions with respect to the employment of young Persons, that is, persons of less than 18 years. In such cases, it is not possible to employ young people without the consent of their parents or guardians, they should be provided suitable accommodation according to their liking and necessary arrangements must be made for their passage back to their homes in the event of short employment Reasons for discrimination: The nine aspects under the Equal Status Laws in which discrimination is termed as illegal are: On the grounds of gender , marital status- whether married or unmarried, family status, sexual preferences, religion professed, age, race, color, nationality, ethnic or national origins, presence of disability, membership of traveler community (What is the Employment Equality Act? 1998). Case Laws regarding issues arising on agency sponsored employment: In a leading case law of James v. Greenwich London Borough Council, the claimant was employed in the Council’s services until 1997. She ceases work and subsequently began work again in September 2001 after moving to another agency. There was no express agreement between herself and the Council, and hence she could not enforce any benefits in terms of holiday pay, sickness pay, etc. She absented herself from work during August-September 2004 and when she returned for work, she was informed that her place was filled up. She filed a suit for unfair dismissal but the Employment Tribunal who conducted the proceedings found that she was under no obligation to perform work for the council, nor the Council bound to provide her with employment. Upon appeal the Employment Appeal Tribunal found that there were no extenuating circumstances that could possibly justify inference of an implied contract between the claimant and the defendant council and the appeal was dismissed. (Agency Worker. 2006). However in another decided case of New Testament Church of God v. Stewart (2007) EWCA Civ 1004, the appeal of the applicant for wrongful dismissal was upheld on the ground that the “intention to create legal relationship” was present in the case When the pastor claimant’s employment was revoked he made a claim for unfair dismissal. The employment tribunal found as a preliminary issue that the claimant was an “employee” of the respondent as ascribed under section 230 of the Employment Rights Act 1996, meaning that there had been an intention to create legal relations and that the contract was a contract of employment. The Employment Appeal Tribunal dismissed an appeal by the respondent. (Employee. 2007). Enforcement of non-discriminatory laws between agency and regular employees: The provisions of the Conduct of Employment Agencies & Employment business (Regulation) Act 2007 also mentions that the regulatory measures applicable for permanent employees would have applicability in agency employment business also. “The Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995, the Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003, apply to employment agencies, employment businesses and hirers” (Guidance on the conduct of employment agencies and employment agencies and employment business regulations. 2003, P.1). It is next proposed to discuss the laws regarding Employment Equality: The Employment Equality Regulation 2003 could be viewed from two aspects, The Employment Equality (Sexual Organization) Regulation Act 2003, and The Employment Equality (Regulation of Beliefs Regulation) Act 2003. The Employment equality regulation of beliefs regulation Act 2003: Under Part II of Section 6 (1) of the Act, it is unlawful for an employer to discriminate with regard to arrangements for determining to whom he should provide employment, including the terms of proposed employment and also with regard to professed discrimination with regard to non provision of employment. Under the relevant provisions of this Section, it is unlawful for employers to show discrimination of the kind to which this Act applies and, in the appointment of individuals, the promotional avenues and also ways by which the services of the appointees could be terminated. Upon the complaint being lodged by the applicant, it is possible that the complaint be referred to the Employment Tribunal. If the ET finds that the complaint is genuine and enforceable the provisions of Section 30 would become applicable under which, after considering all the facts of the case, the order would be passed by the ET enunciating the rights of the applicant and the defendant, in the event of any compensation to be made, the quantum of such compensation under Regulation 31 and thirdly, that the respondent would take necessary action for eliminating, or reducing the adverse effects of the complainant for such acts of discrimination or harassment. (Statutory Instruments 2003 No 1660. 2003). Employment Equality (Sexual Organization) Regulation Act 2003 Similarly, under Section 30 of this Act, Employment Equality (Sexual Organization) Regulation Act 2003, where there is a case to prove discrimination or harassment on grounds of sexual orientation or victimization for having professed sexual preferences, such discrimination or harassment has been termed as unlawful. Under Section 29, the complaint could be forwarded to the Employment Tribunal for hearing and adjudication, and in case it is proved that there has been an offence or infringement committed against the complainant, the tribunal shall uphold the complaint, and pass deterrent strictures, unless the respondent is able to prove that he did not commit, or, as the case may be, is not to be treated as having committed under this Act. (Statutory Instrument 2003 No. 1661. 2003). In the context of agency business the followed laws are being taken up: The Sex Discrimination Act 1975 The Race Relation Act 1976 with its Amendment Act 2000. The Disability Discrimination Act 1995 The Equal Pay Act 1970 The Sex Discrimination Act 1975 Under this Act, there are two types if discrimination on the basis of gender. They are known as direct discrimination and indirect discrimination. In the case of the former, treating women, less favorably due to the factor of her gender could legally constitute discrimination as intended by this law. In such cases it is necessary to establish the following: 1. Whether it was less favorably than the treatment which were to be accorded to a man and (2) whether the primary factor for being discriminated was the fact of her gender. In such cases the moot question that would arise would be in terms of the fact that her gender gave rise to the named discrimination. Coming to the latter form of discrimination, a person applies a condition which must be complied with , before some benefit or gain is forthcoming, and the conditions or stipulation meets all the below mentioned criteria or tests: Whether the said matter of discrimination applies both to men as well as women. Proportion of compliant women are comparatively lower than non-compliant The condition is harmful or detrimental to the women There are no means by which it could be justified by its perpetrator. (A guide to the Sex Discrimination Act 1975. 1997, P.3). The Race Relations Act 1976 and Amendment Act 2000 The main aim of the Amended Act of 2000 is to make it compulsory by law for the public authorities to foster a sense of racial equality and to address to the larger question of elimination of unlawful racial discrimination and the need to provide equality and good relationships between people of different racial groups. These laws are meant to upgrade the educational standards of the minority communities. “They are a means to an end; that is, they should result in and improve the educational experience for all children, in particular those belonging to minority ethnic groups” (Race Relations Amendment Act 2000. 2008). The Disability Discrimination Act 1995 The definition of a disabled person is provided under the DDA as someone who has a “Physical or mental impairment that has a substantial and long-term adverse effect on his or her abilities to carry out day-to-day activities” (Definition of “disability” under the Disability Discrimination Act. 2007). Part 2 of the Disability Discrimination Act 1995 deals with employment. This act categorically outlaws any form of discrimination with regard to employment of disabled people in areas such as selection, training, upgradation, utilities and retrenchment from service. It requires employers to offer “reasonable adjustments” to a disabled person who has been inconvenienced by practices and physical attributes of working place. While outlawing preferential treatment by trade bodies and certifying agencies, it seeks to provide protocol for implementation and rendering of remedial measures for preferential treatment and harassment in workplaces. (Legislation, Codes, Regulations and Guidance. 2006). The Equal Pay Act 1970: This law states that other things being equal, a women’s rate of pay must be equal to that of a man, for doing the same kind and type of job. In this case, it is necessary that the comparisons need to be made between man and woman, and not among the same sex – comparison between man and man or woman and woman cannot be acceptable. However, if the employers can prove that the disparity between pay scale between man and woman is due to other “material factors or considerations“, like working beyond working hours, working on holidays, or working on highly physically strenuous work etc, the contention does not hold good. The Equal Pay Act could be applied in situations where a comparative study between the works of men and women could be readily made, assessing the outputs generated between the women and men, etc. The Equal Opportunities Commission, set up under the aegis of the Sex Discrimination Act, is responsible for the monitoring of the enforcement and applicability of the various laws relating to SDA and Equal Rights. (A Guide to Equal Pay Act 1970. P. 13). Conclusion: The area of agency employment laws offers scope and challenges for the Government and the local authorities and agencies responsible for its enforcement, in that, more than the laws themselves, their usage in empirical settings and enforcement needs to be ensured, in order that the benefits of progressive and beneficial laws could percolate down to the most marginalized and underprivileged masses of the society and result in upliftment of their status. Besides, women who seek the assistance of agency placement services also place themselves at risk and their positions need to be protected through strong enforcement of legislatures, especially in the workplace settings. Similarly, people with disabilities would also need to be given special status, in order that they could serve useful purposes in society. The Government needs to ensure that the practical implementation of laws are a major area of focused attention and efforts, and need to ensure that their efforts to create a strong and viable legal order is underpinned by sustained work ethos, in all areas of its implementation. Only through the use of such measures could it be believed that the true value of employment laws be validated in the time to come. Bibliography A Guide to Equal Pay Act 1970. The Equal Opportunities Commission. P. 13. Last accessed 3 February 2008 at: http://www.womenandequalityunit.gov.uk/pay/eq-pay-act-guide.pdf A guide to the Sex Discrimination Act 1975. (1997). Sex Discrimination. Definition of discrimination. P.3. Last accessed 3 February 2008 at: http://www.womenandequalityunit.gov.uk/legislation/discrimination_act/sda-guide.pdf Agency Worker. (2006). Janes v.Greenwich London Borough Council. [online]. The Incorporated Council of Law Reporting. 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(2003). [online]. DTI. P.1. Last accessed 3 February 2008 at: http://www.churchillrecruitment.net/downloads/Emp%20Agency%20Conduct.pdf Legislation, Codes, Regulations and Guidance. (2006). [online]. Disability Rights Commission. Last accessed 3 February 2008 at: http://83.137.212.42/sitearchive/DRC/the_law/legislation__codes__regulation/keypoints.html Race Relations Amendment Act 2000. (2008). [online]. The standards site. Last accessed 3 February 2008 at: http://www.standards.dfes.gov.uk/ethnicminorities/raising_achievement/763611/ Statutory Instruments 2003: No 1660. (2003). The Employment Equality (Religion or Belief) Regulation 2003. Part V; Enforcement. Remedies on complaints in employment tribunals. Last accessed 3 February 2008 at: http://www.opsi.gov.uk/si/si2003/20031660.htm#30 Statutory Instrument 2003 No. 1661. (2003). The Employment Equality (Religion or Belief) Regulation 2003. Part V; Enforcement. Jurisdiction of employment tribunals. Last accessed 3 February 2008 at: http://www.opsi.gov.uk/SI/si2003/20031661.htm#28 What is the Employment Equality Act? (1998). [online]. The Equality Tribunal. Last accessed 3 February 2008 at: http://www.equalitytribunal.ie/index.asp?locID=50&docID=-1 Read More