Analysis of the Concerning Employment Law - Case Study Example

Topic: Employment Law Language Style: English UK Grade: 2 Answer: This question raises some issues from employment law. In order to answer thisquestion it is necessary to know about the provision of Working Time Regulations 1998, Sex Discrimination Act and Employment Rights Act 1996. Here Joshua was in twelve months’ probation during which he will be entitled to three weeks’ paid holiday. The Working Time Regulations 1998, which introduced a comprehensive scheme of limits on working time for all workers, whether or not they are referred to as “employees”. Joshua is to opt-out of the maximum working week. Now the question arise that whether the conduct is breach of Working Time Regulations or not. According to Working Time Regulation 1998, there is also the question of the total number of hours to be worked. If normal hours are35-40 and all the on-call hours were counted as working hours, the total would be 55-60, so there would need to be an exercise of the opt-out on the part of each employee. However, according to SIMAP, when the worker is in call work tasks will count as working hours. The Working Time Regulations state that working time is "any period during which a worker is working, at his or her employer’s disposal and carrying out his or her activity or duties". However to opt-out Joshua few thinks need to consider such as according to statute law in the UK “an employee has the right not to be unfairly dismissed by his employer”. But in this case the term of the contract itself unfair. According to Polkey v AE Dayton Services Ltd1, Polkey approach to procedure has however been superseded by the Employment Act 2002. The Act will introduce a new s.98A concerned with statutory dismissal. Before addressing the issue of fairness it will help to put the reasons for dismissal in context. Here there is a dual test; firstly did the employers’ decision to dismiss fall with a “band of reasonable responses”. Now the test is objective to determine fairness. It is essential to first consider the reason for dismissal before moving on to the concept of fairness. Different considerations apply to these different reasons. If an employer fails to make his reasons clear he will lose his case in the Employment Tribunal as he is unlikely to be able to show that it was potentially fair. Under s98 (1) (b) and s98 (2) Employment Rights Act 1996 the employer must prove that an employee was dismissed for a potentially fair reason. Here there is a dual test; firstly did the employers decision to dismiss fall with a band of reasonable responses Post Office v Foly; HSBC Bank v Madden2. Joshua will be given the right to unpaid paternity leave after one year ‘subject to the requirements of the business, in the case of British Home Stores v Burchell3, it was held that if an employer held a belief of guilt of an employee, this must be based on reasonable grounds and subject to the employer having carried out as reasonable and practicable investigation into the matter as was possible in the circumstances. Again perhaps amore subjective test would be difficult to find. In Whitbread v Thomas, 4 it was held that the reasonableness of the employers conduct in the dismissal process required compliance with both a pre-dismissal procedure and the appeals process. In Hollister v NFU 5 which viewed procedural matters as merely one of a number of background factors, in the judicial stance towards procedural fairness by adopting what became known as the no difference rule. In W Devis & Sons v Atkins6 had sought to avoid with regard the reasonableness of the employers conduct and its effect upon the compensation payable. He added that "the British Labour Pump principle appears to have become established in practice without it being appreciated that it represented a fundamental departure from both basic principle and the earlier decisions…it is wrong in principle and undesirable in its practical effect", and that the only test of fairness of a dismissal is the reasonableness of the employers decision to dismiss judged at the time that the dismissal takes effect. From the above discussion it can be said that to opt-out him is unfair. Kate is very unhappy about this, especially as she was already paid less than Steven (S), who manages a department of similar size. Section.1 (2)(c) of the Equal Pay Act 1970 provides workers with the right to equal pay where they can show, in terms of the demands that are made on them, that they are performing work that is of equal value. Initially the issue of equal value had to be referred to an independent expert who would assess the jobs under heading such as: Physical demands, Environmental considerations, Skill and knowledge, Planning and decision making above all Responsibility. However, since July 1996, Sex Discrimination and Equal Pay (Miscellaneous Amendments) Regulations 1996, tribunals have had the power to either determine whether work is of equal value on their own or involve and independent expert. The case of Hebbes & another V Rank precision industries Ltd and the later case of O’Brien & ors v Sim-Chem Ltd 7 both raised the question of whether an uncompleted job evaluation scheme can be relied upon to make a claim for equal pay under s.1 (2)(b) of Equal Pay Act 1970. The case of Hebbes involved an application for equal pay by two men. Rank precision industries, their employers had introduced a point’s assessment job evaluation scheme, which resulted in women being placed in the same salary band as men, but at a lower level. In order to raise the salaries of the women to the same level as the men a performance appraisal system was introduced. There was a similar scheme designed for the men, but it was never implemented, as the employers feared it would contravene the Governments non-statutory pay policy. A study regarding the use of job evaluation schemes and their outcome was conducted by the Policy Studies Institute, it revealed that only 9% of the organisations involved reported a major change in existing pay rates.Further to this it was stated that in 83% of cases jobevaluation made no impression of the pay differential between jobs mainly held by men and those mainly held by women. Yet recent figures have shown that women still only earn 82% of men’s average hourly earnings. In Dibro Ltd V Hore & ors8, the employers attempted to submit the results of a job evaluation scheme that was the result of talks with ACAS following the initial complaint of unequal pay. The Industrial Tribunal refused to permit the employers to adduce the evidence for this reason, because the job evaluation did not emerge until after the equal value complaints had been presented. There are two types of discrimination, direct and indirect. Although not mentioned in the Act direct discrimination is overt in its nature, hypothetically when considering job evaluation it would involve a person deliberately under-rating a job with the aim of paying that person less because that job is performed by a woman.Unlike ‘direct’ discrimination indirect discrimination does have a legal definition. The definition was altered by the Sex Discrimination (indirect discrimination and Burden of Proof) Regulations 2001 SI 2001/2660 which implemented the Burden of Proof Directive (No. 97/80) in Britain. Arnie, a tough-talking accountant from Head Office, is bullying her into accepting the changes. Kake can take legal action under Harresment Protection Act. However, she cwill bwt remedy. Bibliography: Hugh Collins, Regulating the Employment Relation for Competitiveness, Industrial Law Journal Vol 30 No1 March 2000, 17 Linda Clarke, Mutuality of Obligations & the Contract of Employment: Carmichael & Another v National Power. Modern Law Review Vol 63, 2000, Painter, Holmes & Migdal, Cases & Materials on Employment Law, 3rd Edition, Blackstone Press, 2000 The Inns of Court School of Law. Employment Law in Practice 5th Edition, Oxford University Press 2001. Read More