Employment Law: How To Manage The Workforce - Essay Example

Employment Law: How To Manage The Workforce It is important for people dealing directly with human resource issues to be conversant with the land’s employment law because it sets out the obligations of both the employers and employees and how to manage the workforce. Knowing to what extend the employer is obligated to their workforce is the first step in understanding under what circumstance a person working is termed as an employee. Studying the employment law gives an understanding of the legal systems and how they affect the workforce setting. Contract of employment The term ‘employee’ under law is an individual who has a contract employment or works under contract (Dickens, 9). The contract in this case can be oral or written and can be expressed or implied between the employer and employee. This means that it is not a requirement for an employment contract to be put down in writing. The employer is required to know when to consider its staff an employee of the company. Where express terms are used the contract of employment is realized in the offer letter, policy documents, memos circulated to staff, employee books and any work related agreements. A statement The Employment Acts Right requires that the employee be given a statement prior to the date they start working (Dickens, 11). A statement is defined as a written document that states the terms and conditions of employment. This statement according to the department of labor (437) captures details such as name of parties, job title and job description, date of employment and period of the employee’s employment. It also includes the hours of work and remuneration package, terms relating to absenteeism due to holidays, sick leaves or family emergencies (437). The document also stipulates the pension schemes and retirement package and length time of serving a notice to the employee plus other collective terms and conditions depending on one company to another (438).A statement also states the company’s rules and regulation on discipline. It has always been used and it is termed as a good proof of employment, however the employee is advised to inquire more because the statement may omit certain terms of employment. There are general terms and conditions according to the European commission (121) that is however expressly defined and well explained in the contract of employment. Most employers prefer employment contracts with fixed term contracts meaning the term of employment will come to an end after a fixed period of time (Addison and Teixeirs, 85). Both the employer and employee need to understand the process that comes after the period expires or if one of them counsels the contract before the stated date of termination. The law provides guidelines on such occurrence and this assist the parties come to an agreement on the next cause of action. In the past there was a huge difference between fixed term and indefinite contracts in how the employees are treated in the company. Today there is hardly any difference because employees get to have a fair hearing in case of discrimination or unfair dismissal before law and so fixed terms contract no longer can be used by employers to their advantage because fixed term contracts provide the employee with equal employment rights as stated by terms and conditions. The issue of notice has to be clearly stated to set out the required period for either party to terminate the contract lawfully. In most cases it is the indefinite contracts of employment that are required to provide for the notice period (Bauer et al, 821). Fixed term contracts although not necessary could include notice provision but most times they often end when the stated date of expiry arrives. A good contract according to Bauer et al. (822) should state the acceptable length of time a notice should be served and whether any payment is applicable between the periods. If the employer’s contract states payment on contract termination all contract terms intended to continue end with the termination of the contract. There are other terms however such as confidentiality still remain even after the employee leaves office (Dickens, 73). In case where the contract does not provide payment the employer can still go ahead and legally compensate the employee on contract termination. This however is not advised because it places the employing company in breach of contract. Due to competition from competitors in developed countries the garden leave concept is gaining popularity. This concept is relative new and mostly applies to senior employees seeking to leave the company to join a competitor (Department of labor, 443). The garden leave is where the employee is prohibited from joining another company until the date of the notice period served expires. This is however rare and requires an express contract provision before executing it. The employee must have a well defined job title indicating their tasks and responsibilities. The title tells the employee what duties they are required to perform and what position they hold in the chain of command. A detailed job description should be drafted by the human resource office outlining the key functions and issues to do with delegation of duties. It is wise to draft a flexible contract to allow future changes where required (Cziria, 1). The employee needs to be notified that they could be asked to take up from time to time other duties. Work location informing the employee their place of work is required. Sometimes the job may require them to travel often or permanently in this case this should be stated in the contract. Employees sometimes resist when asked to relocate or even file complains when asked to move (Bassanini, Nunziata & Venn, 349). In order to acquire the power to move an employee when required it is wise to add a mobility clause to the contract. This clears the problem and prepares the employee for a transfer elsewhere within the stated areas. Some companies on this clause add details on travel expenses and time period. The number of hours required of an employee should be reflected on the employment contract. Every company specifies the number of expected hours a worker should put in but sometimes it requires the employees to put in extra hours. Some employers offer overtime to encourage the workers to put in extra hours while others require the employees to put in long hours to provide quality work without extra payment (Cziria, 3). The contract must provide for additional hours to ensure the employees understand what is required of them in terms of working hours. Holiday entitlement may vary from one company to the next depending on the company’s work schedule. Current regulations entitle a worker to a paid holiday upon contract agreement (Dickens, 74). The agreement states the number of days, pay rate and approval procedures also depending on what position the employee holds. The remuneration package is a sensitive issue and can affect the relationship between the employer and the employee. Because of this the two parties must agree on issues like take home, tax and additional benefits such as medical insurance. The benefits must be expressly stated in case of future alterations or withdrawal of benefits. Many companies have their concern on breach of confidentiality clause especially after the employee leaves the company (Bassanini, Nunziata and Venn, 349). The company is advised to always draw contracts that state clearly to the employees what information the company considers confidential. In cases where patent rights and intellectual property is involved the contract must include them in the confidentiality scope. The Public Interest Act has however limited the ability to impose full confidentiality on employees (Department of labor, 439). Legitimate restrictions legally referred to as restraint of trade or restrain covenants can be sometimes enforced in order to protect the organization (Bassanini, Nunziata and Venn, 353). Some common restrictions include working for or with the company’s competitor while still working for the company. The company may restrict the employee from soliciting its clients while still in the firm (354). The employer could also restrict whom the employee works for after leaving the company among others. The restrictions however have to be considered legally reasonable to also protect the employee’s rights. In employment contracts implied terms are always added to cover additional terms that are not directly expressed in law but are fully legal (Almeida and Carneiro, 321). There are four major reasons why employment contracts have implied terms. The leading factor is efficacy that brings more to the company in terms of business. The company can add on implied terms with the interest of bringing on board a resourceful person. Implied terms The contract can provide for implied terms for certain well established practices taken up by an organization. The practice is unwritten and unspoken and occurs with extreme approval by management. A custom known and practiced such as this can be termed contractual and the employer is obligated to fulfill it (Almeida and Carneiro, 322). An example of such a practice could be allowing paid sick leaves or allowing employees to attend urgent family matters. This practice if allowed and not written anywhere but is a company practice and every employee is aware of it falls under implied term and is contractual. Special employment relationship could also attract implied terms where the employee and the employer carry a relationship of special nature. The courts recognize in employment law this implied terms due to this special relationship (Bassanini, Nunziata and Venn, 355). The terms implied could be to allow the company employee’s work in a friendly environment and enjoy their statutory rights. In an employment contract the most popular implied term is mutual trust between the employer and the employee. Here the employer is expected to act in a way that does not pose a threat or damage the employee’s reputation. There many thins the employer is required to do to ensure the employee’s trust and confidence is not broken including zero bullying and harassment tolerance. There are certain things that the employee should not do in order to keep the implied terms such as employee demotion, employee invasion of privacy and use of verbal and physical manipulation. If the employer ignores the worker’s grievances or wrongfully disciplines a worker then they are in breach of the implied terms (Bassanini, Nunziata and Venn, 349). The reward for such implied terms are that the worker’s offer their loyalty to the employer and their productivity improves which is a plus for the organization. The company is always advised to have some implied terms to keep resourceful workers. Some of the implied terms common among companies include safety measures, confidentiality, employee support and stress-free working conditions. The employment law covers breach of contracts and guides the human resource managers on how to handle certain claims. There are many claims by employees, which are not covered by the employment law that sometimes lead to a court tribunal’s intervention. An employee can file a breach of contract claim if the employer fails to meet the agreed terms. Breach of contracts There are several terms and conditions when two parties come in to an agreement. Where the employer fails to meet one or more terms as agreed upon then he or she could be sued for breach of contract. Employees can file the breach of claim while working with the company or after their contract has ended. In the employer’s case they also fall under breach of contract if the employer has a discipline contract (Morris, Willey and Sachdev, 51). There is also the constructive dismissal that could warrant an employee to claim breach of contract. Certain actions by the employer could lead to a constructive dismissal claim by the employee some of the serious terms include not paying wages, forcing the employees to travel or relocate without a mobility clause or personal agreement (Dickens, 77). Placing the employee without their consent on garden leave and the contract of employment carries no such clause. The employee here may argue on basis of breach of the implied terms provided to the employee by the employer. Changing terms and conditions without notifying the employee for example the number of hours one is required to work. When an employee is dismissed wrongfully or without notice in the stated period of time then the employee could launch a claim for wrongful dismissal. The employer only has a right to terminate the employee’s contract if the employee is found guilty of great misconduct (Bassanini, Nunziata and Venn, 361). It is important for the company to define what they consider gross misconduct so the employee’s know when they have crossed the line. In cases where the employee files such a claim and the contract does not state the notice period the court can decide the appropriate length of time. Dickens (76) adds where the employee is wrongful dismissed and has no history of misconduct and is on a fixed contract the employee should be compensated till the end of the contract. There are several ways in which employees could pursue the breach of contract claims. The employees whose contract is still running by law cannot sue in an employment tribunal. Only employees whose contract has ended can choose to present their case in civil courts or in an employment tribunal (Deakin and Morris, 9). While employees have up to six years to file their claims in a civil court an employment gives a time limit of three months. The employee has up to 3 months from the termination date to file their claim in the tribunal. The court awards the employee an amount of contractual damages if they determine a breach of contract on the employer’s side (Deakin and Morris, 12). The amount is always equivalent of what the employee loses financially as a result of the employer’s breach of contract. Where the court establishes there was wrongful dismissal, and then the employee is awarded salary plus agreed benefits that the employer promised till the end of the contract. For other claims the court always measures the amount of damages and awards the employee depending on the extent of damage as a result of breach of contract. Employment legislation Governing employment legislation has been developed overtime to offer guidance on how to strike a balance between employers and their employees. The employment law strikes a balance between protecting the rights of the employees and making the most of the allocated labor. This Act gives the workers the right to claim their basic rights and in case of unfair treatment the workers can claim in court. The Act contains the right of the employee, the employee as stated must be given a written statement before commencement of employment (Bassanini, Nunziata and Venn, 362). The Act also states that the employee should be paid the full amount agreed upon. The employee has a right to receive their salary in full and should not suffer unlawful deductions. Unless the employee consents the employer should not deduct the employee’s take home pay. The only exception is when deducting the required income tax and national insurance tax set (Morris, Willey and Sachdev, 52). In case of other standard deductions the employer should include the clause in the contract of employment. In this Act the right to a time off is also catered for allowing employees in certain circumstances to not call in at work. It allows employees to attend certain committees, take part in trade unions and attend important appointments such as hospital check-ups (Cziria, 3). The issue of notice is also covered under the employee legislation. The Act provides for the minimum period of time an employee can be served a notice. The length of time to serve a notice can be specified but if the employee argues that the notice served is time limiting then the employee can be awarded the statutory time period. The company could cancel the employee’s contract due to redundancy. This act has places measures for employees with a minimum of two years and have their contracts terminated. The law requires the employer to offer the employee a redundancy payment on termination of contract. The anti-discrimination legislation The anti-discrimination legislation has helped greatly in the past address issues of discrimination in the workplace (Bassanini, Nunziata and Venn, 380). It is unlawful to currently discriminate against employees due to their religious beliefs, sexual orientation, gender, race, disability or age. There many provisions that fall under this legislation a few examples include race relation act, disability discrimination, equal pay act, and sexual discrimination, employment equality regulations on age, religion and sexual orientation. No employee should undergo discrimination in the workplace from the employers or other colleagues. It is against the law to discriminate a worker if anything the employer should commit to protect the employees, prospective employees, former employees and its temporary workers (Department of labor, 493). An employer would be acting unlawful if they were caught discriminating and this can happen through the terms they offer for employment. Discrimination could be noted in the arrangement chosen by the employer for a job offer. Omitting a person up for employment for no good reason yet they meet all the set standards can also be pointed out as discrimination (Bassanini, Nunziata and Venn, 349). Unfair dismissal and keeping a person from accessing equal opportunities for transfers, promotions or other offers is also discrimination. Discrimination can occur either directly or indirectly but both call for the same attention in most countries. Direct discrimination according to Dickens (80) is the process where the employer treats an employee less than what he treats other employees. The employer here discriminates the employee because of their culture, sex, race, sexual orientation, religion and age. The situation here is where the employee would promote maybe a less qualified worker for one who is qualified for the job because of the employee’s gender, sexual orientation, belief or age. Treating an employee in this matter is unlawful and can attract a lawsuit (81). Indirect discrimination occurs where the employer places a certain condition that appears to be same for all employees but targets to leave out a certain group (81). Most times employers have been able to argue objectively towards this form of discrimination. This kind of discrimination tends to lock out a certain group and places one person at an upper hand while the other is placed at a disadvantage (81). One good example is setting a requirement for all employees to start putting on headgear where the company has employees with religious turbans. The rule may not seem as discrimination but it is because the employees in turbans may not meet this requirement. This is unlawful unless the employer is able to convince people the move is really necessary. The act also protects employees from victimization at the workplace. It is the individual’s right to rise complains even when they involve the seniors. Sometime such employees are subjected to victimization to refrain from speaking out as observed by Bassanini, Nunziata and Venn (383). The Act covers this making sure the employee involved is well cared for. The disability discrimination act caters for persons with disability and the Act gives guides on how to handle persons with disability. A person who has impairment that is physical or mental affecting his or her ability to carry out daily tasks is referred to disabled according to Europe commission (123). It is unlawful to place a disabled person at a disadvantage due to failure of making reasonable adjustments. Aside from physical adjustments the employer should alter the work schedule to fit the person, offer training and allocate another person to assist where required. The employer should also modify the equipment been used to allow easy handling. An interpreter where necessary should always be availed. Employees have the right to claim for discrimination regardless of the type of discrimination (Deakin and Morris, 14). If the employee succeeds in their claim they could be awarded a declaration. The tribunal could also order a re-instatement to have the employer drop the discriminatory terms that a small group of employees an equal opportunity. Compensation could also be awarded where the complainant loses financially, emotionally and physically. Recommendation The emphasis on employment protection over the past years has attracted changes in the work place harmonizing the employers and the employee relationship. However, many issues in the workplace remain unresolved such as mandatory retirement, insurance cover and the aspect of equality. It would be recommendable if the policy makers pick such concerns in their debates and come up with friendly terms. Although there is already an anti-discrimination law the policy needs to also deal with areas such how to ensure employees at the work place are not isolated due to their socio-economic status. Clear guidelines should be drawn on how to compel organizations to treat their employees equal regardless of gender, age and race. It should also come as a requirement that the contract of employment clearly differentiate between the retirement age and pensionable age. Other issues such as staffing problems and long working hours such as in the health sector require attention. Such sectors should have well-planned shifts, efficient systems to ease their work, overtime pay and additional benefits in their contract to compensate the employees’ effort. The employment bills should also be adjusted as the times change to suit current situations in the workplace. Conclusion It is the duty of all employers to handle all employees with fairness and consistency. Employment law comes in to ensure that good practice is upheld when dealing with matters of employment. Providing a good environment for the employees is important to motivate and encourage the staff’s productivity. Unfair treatment and breach of contracts on the employer’s side often attract unpleasant and difficult situations. To overcome such situations both parties must honor the contract of employment. The law is clear and manages discipline where there is breach of contract in order to curb unlawful treatment in employment practice. All this legal systems have been put in place to ensure that both parties keep part of their agreement. Table of contents Introduction……………………………………………………………….…………….…....3 Contract of employment…......................................................................................................3 A statement…........................................…………………………………………….……….4 Implied terms..........................................................................................................................7 Breach of contract……………...............................................................................................9 Employment legislation..........................................................................................................10 The anti-discrimination legislation……………………………............................................12 Conclusion…………………………………………………………………………………...14 Work cited...….........................................................................................................................15 Works cited Addison, J. and Teixeira, P. “The Economics of Employment Protection”. Journal of Labor Research, Vol. 24, No. 1, pp. 85-129, 2003. Almeida, R. and Carneiro, P.“Enforcement of Regulation, Informal Labor, Firm Size and Firm Performance”.Centre for Economic Policy Research. Working Paper No. 5976, London.321-337,2006. Bassanini, A., Nunziata, L. and Venn, D.“Job Protection Legislation and Productivity Growth in OECD Countries”, Economic Policy, No. 58, pp. 349-402, 2009. Bauer, R. et al.“Dismissal Protection and Worker Flows in Small Establishments”, Economica, Vol. 74, pp. 804-821, 2007. Cziria, L. Slight Increase in Part-Time Work. European Industrial Relations Observatory Online, www.eurofound.europa.eu/eiro/2005/10/feature/sk0510102f.htm. Retrieved on March 27, 2008.1-3, 2007. Deakin, S. and Morris, G.Labor Law. Oxford: Hart press. P.9-22, 2005. Dickens, L. et al. Dismissed. Oxford: Blackwell. Department of Labor. Review of the Employment Relationship Problem Resolution System, report prepared for the Cabinet Economic Development Committee, Wellington, 437-512, and 2005. European Commission. European Judicial Network in Civil and Commercial Matters website. 2012. Web. 2013. http://ec.europa.eu/civiljustice/index_en.htm.3(7); 1212,2009. Morris, H., Willey, B. and Sachdev, S.Managing in a Business Context: an HR Approach. London: Prentice Hall.32, 51-54, 2002. Read More