Revision of Employment Law - Essay Example

Revision of Employment Law Introduction: It is essential that, at the very outset, the meaning of the terminology “employment status” and its implications need to be determined, before any initiation into the various ramifications governing employment laws are considered for detailed discussion. 1 Further, in the matter of judicial intervention, the Courts would need to consider the legal aspects and contractual obligations/ commitments of the parties to the covenants, and the extenuating or accentuating circumstances which have impinged upon the case. While judicial intervention and pronouncements are a matter of legal discretion and perspective interpretation, the framework of decided law and its application needs to be honoured and enforced at all times. The process of justice seeks to seek to provide relief to the aggrieved or injured parties, and not circumvent or criminalise law for its own convenience and satiation. Aspects of employment status There are basically two aspects regarding employment status, firstly, paid covenanted employees and secondly, hired consultants. Therefore, the essence of employment status would lie in the characteristics of the terms and conditions governing employment, whether on a contractual capacity or in an independent nature. 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 render the performance of any terms, untenable or unenforceable; he/she has to strictly abide by such covenants. Case of disability discrimination: In the decided case relating to discrimination due to disability, the claimant, a part-time typist suffered from a progressively degenerating back injury which rendered it impossible to continue working from her office. When she began her long term sickness leave, she requested her employers to allow her to continue working from home. Her employers were not in favour of this and she resigned. She appealed on the grounds of discrimination accentuated by her disablement under the Disability Discrimination Act seeking protection under “reasonable adjustments” in her place of working. The ET upheld her request, seeking relief pursuant to sections 3A(2) and 4A(1) of the Disability Discrimination Act 1995, but the employers appealed. Upon Appeal, the Employment Appellate Tribunal (EAT) held that the ET had not considered the full facts of the case, including the fact whether working from home would remove the disadvantage she was presently undergoing. The crux of the issue lay in whether substantial advantage could be obtained from working from home, but the ET could not substantially evidence it. The Employment Appellate Tribunal (EAT) felt that the extenuating circumstances hardly justified that providing reasonable adjustments would be beneficial, either to the applicant or the defendants in this case. The Appeal was upheld.2 Factors impinging employment: The various elements that need to be considered, in determining the contractual employment or independent employability of a person could be delineated as follows: There are rights and obligations flowing from both parties, on the part of the employers as well as from the employees, and is applicable, in both cases The employers are in a position to control and guide the activities of the employees and the accountability flows upwards, while the delegation of authority and responsibility flows downwards in the corporate hierarchy. Rights of substitution of work and use of work assistants. In the case of a covenanted employment status this is largely determined by the employers, whereas in the case of self employment, it is the discretionary powers exercised by the consultants whether to exercise this option or not. Similarly, the case of tools and equipments needed for the performance of the work; in the case of the covenanted employees, it is mandatorily, provided by employers, whereas, in the case of consultants, the use of necessary infrastructural requirements needs to be provided by the consultants. The aspects of bearing the financial risks are important, since in the case of employees these threats and contingencies are borne by the employers, whereas in the case of outsourcing, this has to be provided by the outsourcers themselves. Profits, bonuses and surplus sharing: In the case of covenanted staff, they are contractually bound to receive the shares of profits, in terms of company stock options, bonuses etc, according to the terms governing the contract, but these benefits do not accrue to the outsourced consultants who may be compensated in terms of the contract. The right to terminate, or modify the terms of contract vests with the employers in the case of the covenanted staff but, in the case of outsourcing, it depends upon the individuals. 3 Critical analysis: Under the provisions of Employment Equality Act 1998, any form of discrimination, on the basis of sex, marital or family status, sexual preferences, religion, age, race, colour, nationality, ethnic or national origins, presence of disability, and membership of traveller community is illegal and unenforceable. But it is widely believed that these laws could only be enforced on an “individualistic justice model.” 4 Cases dealing with discrimination in employment: In a leading case law - James v. Greenwich London Borough Council, the lady claimant was employed in the Council’s services until 1997. She ceases work and subsequently began work again in September 2001, and again in 2003 she moved to another agency on higher emoluments. 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, neither 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. 5 However in another decided case of New Testament Church of God v. Stewart (2007) EWCA Civ 1004, the services of an applicant who served as a pastor in a missionary establishment was dismissed. His appeal for wrongful dismissal was upheld on the ground that the “intention to create legal relationship” was present in the case 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. 6 Enforcement machinery: Rather than the law itself, its enforcement is of more concern since large scale violations could go unnoticed unless immediate claims are made and registered. However, this may create risks and difficulties upon underprivileged citizens, especially minorities, and they may not be aware of their rights and privileges under the law. Amending Section 2 of the Employment Equality Act 1998, Section 3 of the Equality Act 2004, provides that concessions may be made in the discrimination clauses when recruiting employees for the delivery of personal services at the residence. Again, it is seen that, enforcement of non- discrimination clause does not apply under Section 37 (1) of the EEA 1998, in the case of a religious trust or body which could legally discriminate between employee or prospective employee, in order to preserve its religious sanctity, or to prevent employee or prospective employee from undermining it.” 7 Provisions of the Equity Act Section 48 of the Equality Act has introduced Amendment 3 of the Equal Status Act in order to reflect the definition of the indirect discrimination in DIN 2000/43/EC. It is based on the disadvantages or discrimination that has already taken place, and thus does not reflect potential discrimination and methods by which they could be eliminated. Further challenges posed by various legislatures relate to the fact that the government has not been successful in amending the Equal Status Act 2000 to include the functions of the state in the definition of ‘service’. Another defect has been that the Equality Act fails to raise sanctions and remedies in Irish law to comply with ECJ jurisprudence regarding sanctions and directives. 8 Integration of European Union laws and international Directives into state laws: It has also to be specifically mentioned that the recommendations of the European Council, Economic Court of Justices (ECJ) and other international judicial bodies need to be integrated into existing laws of the country. These may pose integration difficulties, since the EC Directive may sometimes be in disagreement with national laws. However, it needs to be said that the EC directives assume precedence over local laws and need to be evolved into the system in order to gain the benefits of legal jurisprudence. This can be done, either by scrapping the existing laws and introducing new laws concurrent with the guidelines issued by EU laws, etc or suitably amending existing laws to effectively include the same. It may be said that the true effects of equality laws could only be implemented and sustained, by taking an international perspective, especially with regard to issues posed by globalisation and economic development. The main factors that need to be considered in the employment context are the discrimination based on the following grounds: Equal Status Laws: 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. Age Race colour, nationality, ethnic or national origins Presence of disability Membership of traveller community 9 In the case of a woman, her gender status could be a possible ground for discrimination at her workplace. Case Law: A Female employee vs. A Candle Production Co A case law regarding discrimination on the basis of gender is being taken up for discussion. A Female employee vs. A Candle Production Co: During the course of her employment she alleged that she was sexually harassed by her employer through inappropriate physical contact and offensive and snide sexual remarks. Despite the fact that she had lodged informal complaints, no action was forthcoming. Unable to bear the sexual overtures, she took sick leave, during which time, her employer terminated her services. When the matter came up at the Equality Tribunal, her employers denied having sexually harassed her. They further maintained that her termination was due to late coming and frequent absenteeism, which affected the work flow in a small company, like theirs. However, the Equality Tribunal gave the verdict that this was indeed a case of sexual harassment and ordered that the following compensation be paid to the victim. The Equality Officer ordered to pay € 7000 compensation, for the trauma caused to the applicant due to her harassment 2. € 10000 damages, being the result of her victimisation at the hands of her employers.3.Interest to be paid from the date of reference of the claim till it is settled. 4. Setting up a clear policy including positive measures for the prevention of harassment & sexual harassment at the place of employment in accordance with the Equality Authorities Code of Practice on Sexual Harassment & other forms of harassment. The policies need to be clearly explained to all employees and should also be displayed in a prominent place in the organisation. 10 The Employment Equality Regulation 2003 The various laws and legislations that govern employment may be studied in terms of the following Acts: The Employment Equality Regulation 2003, which is split into two aspects; one, The Employment Equality (Sexual Organisation) Regulation Act 2003, and other, The Employment Equality (Regulation of Beliefs Regulation) Act 2003. After that the following Laws would also been discussed: The Equal Pay Act 1970 The Sex Discrimination Act 1975 The Race Relation Act 1976 with its Amendment Act 2000. The Disability Discrimination Act 1995 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 order will also state 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. 11 Employment Equality (Sexual Organisation) Regulation Act 2003 Similarly, under Section 30 of this Act, Employment Equality (Sexual Organisation) Regulation Act 2003, where there is a case to prove discrimination or harassment on the grounds of sexual orientation or victimization for having professed sexual preferences, such discrimination or harassment has been termed as unlawful. Section 29, envisages that 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. 12 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 in the 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. 13 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 favourably 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 favourably 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 mute question that would arise would be in terms of the fact that her gender gave rise to the 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 stipulations meet 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. 14 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.” 15 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.” 16 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, up gradation, 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. 17 Hoffman v.South African Airways (SAA) (2000) In the decided case of Hoffman v.South African Airways (SAA) (2000), Mr. Hoffman applied for the job of cabin attendant with SAA. He was asked to go for HIV Test which turned positive. The airlines refused to give him a job on the grounds that his job entailed visits to various countries and he would need to take yellow fever vaccination – An HIV + could not possibly take such vaccination. He appealed on the ground of discrimination. The Airlines held that being HIV Negative was a pre-condition for job and by non-compliance to this; he had forfeited his claim for being able to apply for this job. However the Courts upturned the Airlines views and held that SAAA had discriminated against the applicant, Hoffman. The Court questioned the validity of how +HIV could possibly affect the work of a cabin attendant and inoculations needed for visits to other countries. 18 Conclusion: The area of 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 uplifting of their status. Besides, women constitute the most vulnerable sections of modern society, and their position needs 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 legal instruments would be validated and honoured in the times to come. Bibliography Agency Worker. (2006). James v.Greenwich London Borough Council. [online]. The Incorporated Council of Law Reporting. Last accessed 05 February 2008 at: http://www.lawreports.co.uk/ICRE/2007/mar.0.6.htm A Guide to Equal Pay Act 1970. The Equal Opportunities Commission.13. Last accessed 21 January 2008 at: http://www.womenandequalityunit.gov.uk/pay/eq-pay-act-guide.pdf A guide to the Sex Discrimination Act 1975. (1997). Definition of discrimination. Sex Discrimination. P.3. Last accessed 21 January 2008 at: http://www.womenandequalityunit.gov.uk/legislation/discrimination_act/sda-guide.pdf Annual Report 2006. (2007). Business Link: Practical Advice for Business Employment Status. [online]. The Equality Authority. Last accessed 21 January 2008 at: http://www.equality.ie/index.asp?locID=136&docID=684 Annual Report 2006. (2007). A Female Employee v. A Candle Production Company. P. 36. [online]. The Equality Authority. Last accessed 21 January 2008 at: http://www.equality.ie/index.asp?locID=136&docID=684 Definition of “disability” under the disability discrimination Act DDA. (2008). [online]. Directgov. Last accessed 21 January 2008 at: http://www.direct.gov.uk/en/DisabledPeople/RightsAndObligations/DisabilityRights/DG_4001069 Disability Discrimination. (2007). Environment Agency v. Rowan. [online]. The incorporated council of law Reporting. Last accessed 05 February 2008 at: http://www.lawreports.co.uk/ICRE/2008/jan0.6.htm Employee. (2007). Agency Worker: New Testament Church of God v Stewart: [2007] EWCA Civ 1004. [online]. The Incorporated Council of Law Reporting. Last accessed 05 February 2008 at: http://www.lawreports.co.uk/ICRE/2008/jan0.8.htm Employed or self-Employed? Employment Status. [online]. HM Revenue & Customs. Last accessed 21 January 2008 at: http://www.hmrc.gov.uk/employment-status/index.htm#1 Equality Coalition. (2004). Response to the Green Paper on anti-discrimination and equal treatment. P.5. Last accessed 21 January 2008 at: http://www.paveepoint.ie/submissions/04-EC-Greeen-Paper.pdf. Equality Coalition. (2004). Response to the Green Paper on anti-discrimination and equal treatment. P.6-7. Last accessed 21 January 2008 at: http://www.paveepoint.ie/submissions/04-EC-Greeen-Paper.pdf Employment Equality Act, 1998. (1998). Government of Ireland: Oireachtas. Exclusion of discrimination on particular grounds in certain circumstances. [online]. Irish Statute Book. Last accessed 21 January 2008 at: http://www.irishstatutebook.ie/1998/en/act/pub/0021/index.html HIV and AIDS and the LAW. (2008). The Employment Equity Act EEA. Last accessed 05 February 2008 at: http://www.paralegaladvice.org.za/docs/chap12/04.html Legislation, Codes, Regulations and Guidance. (2006). [online]. Disability Rights Commission. Last accessed 21 January 2008 at: http://83.137.212.42/sitearchive/DRC/the_law/legislation__codes__regulation/keypoints.html Race Relations Amendment Act 2000. (2008). Achievement. [online]. The standards site. Last accessed 21 January 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. Remedies on complaints in employment tribunals. Part V: Enforcement. Last accessed 21 January 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. Remedies on complaints in employment tribunals. Part V: Enforcement. Burden of proof: employment tribunals. Last accessed 21 January 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 21 January 2008 at: http://www.equalitytribunal.ie/index.asp?locID=50&docID=-1 Read More