Regulating the Employment Relation - Case Study Example

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 According to Polkey v AE Dayton Services Ltd1, Polkey approach to procedure has however been superseded by the Employment Act 2002.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 decisionsit is wrong in principle and undesirable in its practical effect", and that the only test of fairness of a dismissal is the reasonablenes