Employment Law in the UK - Essay Example

EMPLOYMENT LAW (UK) The different employment protection laws in the United Kingdom are the tools that help the employees to know their rights in the workplace and provide job security from unjustified and unfair circumstances. Introduction The employment law of the United Kingdom (UK) involves a legal relationship between the employer and employee1. In the UK, the employees are entitled to receive the minimum charter of the employment rights2. The National Minimum Wage Act 1998 in the UK states that an employee that attains an age of 21 years is entitled to receive a minimum wage of £6.31. The employee should be provided with 28 paid holidays and only be working for 48 hours in a week and the extension of the hour can only be made with consent of the employee, which is mentioned in Working Time Regulations Act 1998. The Employment Rights Act 1996 states that an employee has the right to avail leave for child care and request for flexible working hours. The Act also states that if the employer dismisses the employee from work, the employer needs to provide a concrete reason for the dismissal along with the payment that needs to be settled with the employee. According to the Act the employer cannot remove the employee from the service with unfair reasoning. In case there is a taken over of the company by another company there should not be worsening of the terms of employment, which includes the dismissal as well without a proper organizational, technical or economic reason. This employment right is protected by the Transfer of Undertakings (Protection of Employment) Regulations 2006. According to section 1 of Employment Rights Act 1996 the employer needs to provide the contractual terms and conditions of the employment to employee in written. However, there are exceptions to this law. There is a provision under section 2(4) of the Act to provide the statement in installment. However, the statement should be given within two months of the employment. UK Employment Laws In the year 2010, Equality Act has been employed in the Employment Law of the UK. This act is way beyond employment, which provides access to both public and private services. According to this Act all the employees should get equal treatment irrespective of their gender, race, sexual preference or orientation, religious belief, age etc. These are some major perspectives of the Equality Directives of the Equality Act 20103. The Equality Act 2010 goes beyond the absolute discrimination and fights the discriminations that are made based on race, gender including pregnancy, belief, sexuality including marital status, age and disability4. There can be an example discrimination based on one’s following a particular football team; however, this can be regarded as unlawful only when the employee claims it under unfair dismissal. According to section 1 of the employment Rights Act 1996 the contractual agreement should contain fundamental aspects, which include the name of the employer and the employee, date of commencement if the employment, date of starting of the continuous employment, rate of the remuneration and wages. The section 1 also states that the employer needs to mention hours of work the employee needs provide to the company for the remuneration that he/she is getting along with the number of holidays in the year that is entitled and the sick leaves that the employee can avail in a year. This section also contains the scheme of pension that the employee would be entitled to avail while working for the employer. According to section 1 while computing the pension scheme it is important to mentions each and every detail. The most important detail that is important to mention in the pension scheme are the notice period for which the employee needs to serve the employer in order to avail the pension scheme. Another important point that should be included in the letter is the title of the job that the employee is serving. If the employee is not a permanent then it is necessary to mention the last day of the contract ending. Apart from these clauses place of work, working in abroad locations, any relevant collective agreements along with the disciplinary and grievance rules should be mentioned in the pension scheme document. Workplace Reorganization As per the employment laws in the UK there are several judicial inputs come into function when it comes to managing stage 3 of workplace reorganization. However it is need to be kept in mind that while computing the workplace reorganization clauses it should be in compliance with the requirements mentioned in section 98(4) of the Employment Rights Act 1996. Polkey’s fairness principles play a big role in computing the laws of fairness. The principle comes into place after the case between Polkey and AE Dayton Services Ltd 1988, where Polkey was made redundant and dismissed on the grounds that he was not fit for the post of van salesman. Polkey had registered a case of unfair dismissal and it reached the House of Lords. According to Polkey’s principle the employer should follow the procedures that are relevant to the issue of fairness while dismissing an employee from service. ACAS has suggested many clauses in their website www.acas.org.uk, which can help the employers to formulate their contract terms and conditions pertaining to employment. The Advice and Guidance section of the website shows path on how to create the terms and conditions pertaining to the rights and responsibilities at work, recruitments and contract, working hours, pay, time off, equality, parents and care givers, redundancy, notice and retirement5. ACAS has mentioned in the website that it is very much important for the businesses to properly follow the rules and regulation when it comes to employment. It is an employer’s duty and responsibility to get everything right and fair to the employees. At the same time it is the employee’s responsibility to know well about the rights as well as the duties that he/she needs to perform while on duty. It is an employee’s responsibility to be well aware of the important aspects like contract, pay, working hours and time off6. Employee Dismissal The act of dismissal occurs when employer terminates the contract of the employee. When it comes to the dismissal of the employee from the service it is necessary for the employer to carry out the necessary investigation and it is better to establish the fact without delay. ACAS suggests in the key points in the website that it is necessary for the employer to use consistent and fair procedure when it comes to the dismissal of an employee. However, it is better to try to sort things informally at first rather than going for dismissing the employee. According to the Employment Rights Act 1996 an employee has rights to challenge the employer if the dismissal is unfair. ACAS has formulated Code of Practice 1 – Disciplinary and Grievance Procedures and Discipline and grievances at work: The Acas guide. This Code is designed in such a way that it helps employees, employers and representatives to deal effectively with and grievance or disciplinary situation arise in the workplace. However, the Code does not apply for any redundancy dismissals or any non-renewal of the employment contract that gets expired. It is always better to set the rules and procedures in written and make sure both managers and employees understand those when there is any disciplinary issue7. ACAS Code 1 suggests the decision of dismissal should only be taken by the manager who is authorized to do so. It is duty of the manger to inform the employee about the dismissal as soon as possible. If the employee is on contract basis it is necessary to let the employee know the last date of the contract period along with the period of notice that the employee has to serve before leaving the service. The employees should also know about their rights to appeal to the court of law in case of any dispute that he/she may feel. The employer has the rights reserved for immediate dismissal of the employee, without any notice period, if there is any misconduct being reported against the employee. This type of offense is taken very seriously and is regarded as the first offence. Though the termination of the employee is immediate a fair disciplinary procedure should be followed in this case as well. One of the notable case studies due to failing of ACAS intervention and meditation is “The Grangemouth dispute Nov 2013”. The dispute in this case was minor that took place followed by a personal argument between company manager and union representative and ultimately the Union threatened to go on strike. ACAS intervention left the INEOS to walk out and the government of Scotland threatened nationalization in case the company left Scotland. However, the case was eventually resolved by company offering each worker £15,000 along with pension top up if the workers can abide by the clause of “no striking” for 3 years and freeze on pay rises. Contract of Employment The term contract of employment refers to a transparent document between the employer and employee, which contains various terms and conditions of the employment. The contract of employment contains the implied terms and conditions. The implied terms can be formulated by using the data from two main types of sources: Factual Implied Terms and Terms Implied by the Law. These implied terms are regarded as the main source to explain the rights and duties to the employees and it also bridges the gap. The terms implied by Law are the terms that gets automatically incorporated in the contract of employment. Whereas the factual implemented terms are the ones are being incorporated in the contract based on the need and policy of the employer. When an employee is suing the employer on the grounds of unfair dismissal, it is mandatory to have all the fool-proof evidences in order to proof the charges. One of the famous cases in this particular aspect is the case between Quashie and Stringfellows8. The case was started in the London Employment Tribunal and eventually Quashie lost the case in the Court of Appeal. In the detailed study of the case it was revealed that many things were missing, which made the case weak for Quashie. The first question that came into picture was she an employee of Stringfellows Restaurants Ltd. If yes then what were the key terms and conditions of her employment, which she should have received within 2 months of her employment. She did not get the document and still held the contract, which is not supported by the section 1 of the Employment Rights Act 1996. There was no information on how pay would work out. If there were any implied terms in the employment contract then Quashie’s case could be stronger. Hence it is evident that the implied terms is helpful in supplying the missing terms, cover unplanned eventualities like effect on pay in case of absence in work and it also supply details about the duties of the employees. The terms implied by the Law also make the employers to pay proper wages, provide work, exercise care and also maintain mutual trust and confidence between both the parties. Implied terms are a major source of rights and duties affecting both sides of the employment contract. The Wage-Work Balance As per the Employment Rights Act 1996 the employer should ensure there should be wage-work balance for every employee in the firm9. There are certain regulatory aspects like holiday pay, wages changes, reductions made by the employer and others should be included in the contract terms and conditions. In the year 1998 the United Kingdom has fixed a minimum national wage and also has set a maximum limit a worker can work in a week10. The working time regulation and the direct wage is comparatively a recent phenomenon. According to section 13 of the Employment Rights Act 1996 employer can only make reduction in the wages if an employee is willing to the deduction and the consent should only be given in written. From the Trade Board Act 1909 there is a minimum wage is to be determined depending upon the type of industry. When formulating the contract of employment the wage-work bargain should take the center stage. This is the core part of the employment contract. According to the Act the focus in generally on the common law and in the recent time it is more towards statutory protection of wage and work including the working time. As per the Employment Rights Act 1996 it is the right to the employee to know the breakup of the salary along with the deductions, if any. This is termed as itemized pay statement. The itemized statement should contain the gross amount of the salary along with any variable or fixed (according to section 9) and deductions with the descriptions. The net salary after all necessary addition and subtraction should reflect in the statement (section 1). When it comes to deductions the employer does not have any right to make any unauthorized deduction from the wage of the worker (section 13). If there is any mandatory deduction to be made, it should be known to the employee and the employer should obtain a written consent from the employee. According to subsection 13(27) of the Employment Rights Act 1996 any deduction is unlawful unless authorized by the contract or specific authorization by the employee. Unfair Dismissal There was only the concept of “wrongful dismissal” until the year 1971. This concept was not being used to many of the employees. The government in the UK made it priority to replace “wrongful dismissal” with unfair dismissal. This was thought in order to curb the number of strikes and walk-outs. The main objective of unfair dismissal is to make the dismissal justified11. The unfair dismissal is basically a claim, which is based upon the sections 94 to 134A of the Employment Rights Act 1996. These sections of the Act govern the reasons of the termination of the contract. In contrast the wrongful dismissal is the act of unjustified breach of employment contract terms. The structure of the Act is based upon the Donovan Report 1968 preceded by the Industrial Relations Act 1971. Under section 94 of the Employment Rights Act 1996 an employee has the right to claim for the Employment Tribunal if he/she has worked for the same employer for over a year12. One of the case studies is Kwik-Fit (GB) Ltd vs. Lineham. In this case Mr. Lineham was shouted at by the manager, in front of the other staffs, because of using the office toilet after drinking at a pub. In response to that he threw the keys and drove out of work. In this case Mr. Lineham claimed that he was dismissed. The Tribunal also has agreed to the claim and gave the judgment that Mr. Lineham has never resigned from the service. Conclusion The Employment Rights Act 1996 has given rights to the employees for safeguarding their jobs from unfair and wrong dismissals. All the employees have the rights to use the Act if they feel their employers are not fair to them. It is Employment Rights Act that helps the employees to know more about their rights in the workplace. For example if the employee does not receive the contract of employment within 2 months of employment it is better to ask for the same since the employee has the right to receive it, which is document for him/her giving all the minute details of the employment. References Northern Ireland has specific legislation and is excluded from two primary statutes, the ERA 1996 s 244 and TULRCA 1992 s 301, but has mostly analogous provisions and falls under most of the other Acts and Regulations. Wedderburn KW (1986) The Worker and the Law (3rd ed.) Harmondsworth, p. 6, referring to a "floor of rights", and Gisda Cyf v Barratt [2010] UKSC 41, [37] Race Equality Directive 2000/48/EC, for race; Employment Equality Framework Directive 2000/78/EC, for religion, belief, sexuality, disability and age; Equal Treatment Directive 2006/54/EC, for gender. Equality Act 2010 ss 4-14, 16, 18 Ewing KD (1998) The State and Industrial Relations: Collective Laissez-Faire Revisited, Vol. 5 Historical Studies in Industrial Relations 1. Webb S and Webb B (1897) Industrial Democracy. Kahn-Freund O, Labour and the Law (Hamlyn Lectures 1972). Collective Redundancies Directive 98/59/EC and TULRCA 1992 ss 188-192. Quashie v Stringfellow Restaurants Ltd [2013]IRLR 99. Deakin & Morris Labour Law pp.292-294. K. Puttick ch.4, 5 in R. Painter & KP Employment Rights The Economic Theory of a Legal Minimum Wage’ (1912) 20(10) The Journal of Political Economy 973-998 Ministry of Justice, Employment Tribunal and EAT statistics 2009-10 (3 September 2010) Collective Redundancies Directive 98/59/EC and TULRCA 1992 ss 188-192 Read More