The Legal Structures and Procedures in Place to Resolve Employment Disputes - Term Paper Example

Critically evaluate the legal structures and procedures in place to resolve employment disputes (UK/European union context only) No: Course Name: Instructor’s Name: Date: Critically evaluate the legal structures and procedures in place to resolve employment disputes (UK/European union context only)  Structure of Employment Law We all understand that the court’s structure is fixed but it does not mean that it cannot be changed with the changing circumstances. In the legal system of United Kingdom, we may find clear hierarchy of court’s structure. Therefore, it is utmost important to know the relationships between the subordinate courts and the superior courts. Further, we should not ignore certain types of law, which deal with implications of employment law. The issue that is more important is how the European Union Law affects the employment law of the United Kingdom. We should also take into account the role of European Court of Justice and the European Court of Human Rights. Employer’s discrimination As per UK law, employers cannot mistreat or give favorable treatment to one employee over another on the basis of cast, creed, color, age, religion and sex. Different kinds of discrimination on the part of employers are: not to hire because of one of the personal characteristics cited above, to select a particular or favored person, to pay someone attractive remuneration as compared to other persons in the same bucket and pay less than that to the other workers who are sailing in the same boat (FBA 2011). Discrimination of any kind under the rules and regulations is permissible whether it is intentional and unintentional. If in an ideal working condition, we prefer one group over another keeping in view any reason of preference, this falls within the ambit of discrimination (FBA 2011). Kinds of discrimination Discrimination on the basis of mentioned characteristics is not allowed under UK Law: a) age b) transsexual person c) married d) civil partnership e) under pregnancy f) having kids g) disabled h) race inclusive of color, ethnic group, origin and nationality I ) religious beliefs j) sex and k) sexual orientation (FBA 2011). Aforementioned characteristics are considered as protective characteristics. Employees can be protected from cited discrimination in the mentioned scenarios a) at work b) at educational institutions c) as a user of consumer products d) at the time utilization of public services e) at the time of buying or renting property f) member of a private club, guest of a private club and business association / trade body. It is worth mentioning that the employees are legally protected from discrimination of any sort under the Equality Act 2010 (Hepple 2010). Action against Discrimination If anyone puts in efforts voluntarily to help someone in need, having protective characteristics, this action can be termed as positive action. Employees have the rights to take legal action a) at a disadvantaged stage b) at the time of particular needs c) under representation in an activity / type of work (Hepple 2010). Disability Rights Any disabled person can be protected from the discrimination of any kind by exercising their rights in the areas a) employment b) education c) dealing with the police. To effectively enforce the rights and to safeguard the interest of the disabled employees, Equality Act 2010 and the United Nations (UN) Convention can be invoked for remedial measures (Hepple 2010). How to solve a workplace dispute Usually the problems of employees with regard to the employer’s attitude fall in one of the categories a) grievances with employer when employee records his / her concern or complaints and b) disciplines of the employee when the employer puts a question mark on the performance or on the conduct of an employee / employees (Collins, Ewing & McColgan 2005). As a first step, employee may lodge his or her concern / complaint with the manager so as to enable him to sort out his or her concern / problem at his or her level. In the light of the suggestions / recommendations, the employer may discuss the disciplinary issues with employees at fault that may lead to admonition, suspension, termination and dismissal as the case may be (Painter and Holmes 2012). Right to be Exercised The law permits an effected employee to file an appeal with the competent authority against any disciplinary action taken by the management with the assistance of a) coworker / representative of collective bargaining agents (CBR) / trade and b) family member and the Citizens Advice Bureau (Collins, Ewing & McColgan 2005). Formal Procedures Employees have the prerogative to file their complaints with the competent authority or face the disciplinary action provided that all our efforts to resolve the problems become futile or are unsuccessful (Taylor and Emir 2012). Grievances Before solving any problem, an employee as an initial measure, should talk to his or her manager. In case of failure of any positive response from manager, he or she may lodge complaint in writing. Employee should go through to know his or her rights and limitations contained a) company booklet b) human resources (HR) manual c) HR website and d) employment contract (Selwyn 2011). According to the service rules and procedures, the employee should adopt one of the following a) writing letter(s) to employer that contains the details of grievances b) Personal meeting with employer to sort out issues and c) filing appeal against the decision of employer (Selwyn 2011). Appeals Against the decision of the management, an employee can file an appeal in accordance with employee’s service rules and regulations. The employee should know a) how to file an appeal b) whom to file an appeal and c) time limit to file an appeal d) the employee has the right to be in company with the persons as identified under the heading of “Rights to be exercised” (Nairns 2011). Mediation, conciliation and arbitration The employee may also use alternate channel (third party) to resolve disputes that arise out between the employee and the employer. The modalities are a) mediation b) conciliation and c) arbitration (Painter and Holmes 2012). Mediation The role of mediator is to conduct an impartial enquiry into the matter to find out the causes and discuss it with the employee or employer as the case may be to arrive at an amicable solution of the problem and to mend fences between the employee and the employers by identifying the bottlenecks that are in the way. The employee should keep this in mind that the decision of the mediator is not binding on the employee to comply with. To implement the decision, the mediator requires consensus of an employee and the employer (Painter and Holmes 2012). Tribunals If all out efforts made to reconcile the problems that exist between the employee and the employer fail, employ may invoke the jurisdiction of competent employment tribunal to seek remedy (Nairns 2011). Tribunal Procedure An employee can take employer to an employment tribunal within a period of 3 months provided that the employer has mistreated the employee on the following grounds a) unfair dismissal b) discrimination and c) unfair deduction from pay. Cases are normally held in the employment tribunal that is closest to the place of work of an employee (Barnard 2012). The employer usually takes 28 days to respond to the claim of the employee. In case of failure, the employment judge may decide the case in favour of the employee without hearing the case (Barnard 2012). If an employee proves that the employer is at fault, then the court orders the employer to a) pay compensation b) improve working condition and c) re-employ the employee. The amount of compensation depends on a) type of case b) age c) length of service and d) salary (Barnard 2012). If the employee loses the case, he or she may have three options to exercise a) request the tribunal to revisit its decision b) appeal to the Employment Appellate Tribunal and c) the new evidence should come to surface (Barnard 2012). Legal Structure and Procedures of European Union Court of justice The Court of Justice is to ensure that EU laws are interpreted and applied in their true spirit in all member states. It means that the law treats everyone equally. Further, the Court of Justice will not allow domestic courts to pass on the different rulings in the same case. The Court in question makes sure that member states and institutions are in accordance with the provisions of law. It has the discretion to settle the legal disputes between the member states, institutions, business entities and the individuals as well (Barnard 2012). To run the affairs of Court of Justice, Court of First Instance came into being in 1988. This court gives certain rulings on different kinds of cases particularly actions brought by the individuals, companies and fewer organisations, which relate to competition law. The European Union Civil Service Tribunal plays an effective role of a mediator to settle down the issues between the European Union and its civil services (Barnard 2012). Court Rulings It is the responsibility of the court to give rulings on the cases presented in the court. The Court gives rulings on cases brought before it. Common sorts of cases for references / actions are a) preliminary ruling b) failure to fulfil an obligation c) annulment d) failure to act and damages (Nairns 2011). The preliminary ruling procedure The domestic courts of each EU country are to ensure that EU laws are properly applicable in that country. By applying the European Union laws, there are all the chances that different countries of the EU may interpret the laws in different ways. As preventive measures, preliminary ruling procedure has been introduced. In case of any misunderstanding / ambiguity about the EU Laws, the national court may refer the matter to EU Court of Justice for necessary clarifications / interpretations. This advice will come up in the shape of preliminary ruling (Barnard 2012). Actions for failure to fulfil an obligation If member states fail to fulfil their obligations under the EU Law, the Commission may start the proceedings at its own. In such type of scenario, the court investigates the allegations levelled and gives its judgement accordingly. The accused members if found at fault have to do certain tasks in the right direction immediately. Further, if the commission finds that any member of the EU does not comply with the judgement of the Court of Justice, it may impose a penalty on that country (Barnard 2012). Action for annulment If Council, Commission or Parliament finds that a particular country of the EU is not meeting the requirement of being the member state, they request the apex court to annul its membership. Actions for annulment affect the individuals, desiring that the Court has to cancel a particular law since it adversely affects individuals. During the course of hearing, if the competent court finds that the law is not correctly implemented or is not based on the treaties, it may pronounce the law as void (Barnard 2012). Action for failure to act Numbers of treaties signed in between the member states permit European Parliament, the Council and the Commission to take certain decisions under different circumstances, failing to do so, member states, the EU institutions of other countries, persons and the companies may exercise their right to lodge a complaint with the Court of Law (Barnard 2012). Action for damages In case any person or company suffers badly due to action or inaction of the Community or any of its staff members, he may seek compensation before the Court of First Instance (Barnard 2012). Conclusion The perusal of legal structure of UK and the legal structure and procedure of the European Union indicate many loopholes to plug in so as to make European Union Employment Bureau more effective to run its affairs and to deal with the issues of employees of members states in accordance with EU legal structure and the procedures in vogue. The procedure to lodge complaint as per their respective laws and procedures is identified herein above. According to which, employee can lodge complaints against the discriminatory actions of the employers initially in line with the service rules and regulations of the organisation. Later on, an appeal can be placed before the competent authority to seek remedy. As a last resort, the victim can knock at the door of appropriate competent jurisdiction for decision (Barnard 2012). In spite of the exemplary cooperation amongst the member countries, it would be advisable to increase knowledge on the functions of the Public Administrations within the purview of Member States of the European Union besides the agenda of European Union Public Administration Network. The civil service should be introduced as an essential tool in member states to run the affairs of the government and the public sector organizations smoothly and to secure major political decisions, which ensure adjustment of law, feasibility and effectiveness (Collins, Ewing & McColgan 2005). It is agreed by all segments of society that the Law should play its due role for effective administrative actions and to ensure guarantee of subjective rights so as to make it an important tool, which ensures administrative efficiency. There is a dire need that in future, European Civil Service should specifically focus on a) public employee dynamism b) flexibility and efficiency c) working modalities d) introduction of on-line administration (Nairns 2011). To seek the highest possible efficiency amongst the government and the public sector organisations, the management should stress upon the training need of their employees to keep them abreast with the requirements of modern age and to fulfil the organizational needs. With the formation of European Union, it is incumbent upon the European Union Administration to enhance its cooperation, coordination and knowledge sharing between the citizens of member states. This can be done by sharing comprehensive knowledge and to set very well planned strategies aimed at to promote welfare and wellbeing of their citizens in general and the employees of the government and the public sector organisations in specific. Bibliography Barnard, C. (2012). EU employment law. Oxford: Oxford University Press. Collins, H., Ewing, K. D., & McColgan, A. (2005), Labour law: text and materials. Oxford: Hart Publishing. FBA, S. F. (2011). Discrimination law. Oxford: Oxford University Press. Hepple, B. (2010). The new single equality act in Britain. The Equal Rights Review, 5, 11-24. Nairns, J. (2011), Employment law for business students. 4th edn. London: Longman Publishing Group. Painter, R., & Holmes, A. (2012). Cases and materials on employment law. Oxford: Oxford University Press. Selwyn, N. (2011), Law of Employment. 16th edn. Oxford: Oxford University Press. Taylor, S., & Emir, A. (2012), Employment law: an introduction. Oxford: Oxford University Press. Read More