The Principals of Employment Law - Essay Example

Employment Law Task The Cranford Computers Ltd is seeking advice, Vis – a – Vis the consequences of its actions, regarding its employees and workers. The notion of equal treatment will be applicable to annual leave, anti – discrimination, maternity, overtime, working time and pay. However, this principle does not address contractual notice, sick pay, redundancy pay and benefits in kind. An agency worker becomes eligible for equal treatment, if he has been with the same hirer, uninterruptedly, for 12 weeks. If there is a gap of 6 weeks, during an assignment, then this qualifying period will recommence. Breach of basic rights by the agency or hirer renders them liable to the extent of their contribution to such breach (Davies, p. 38). The Agency Workers Regulations 2010 is founded on the principle of equal treatment to agency workers, in comparison to employees. The entitlement to equal treatment is restricted to fundamental employment and working conditions, like rest breaks and pay and not to protection from unfair dismissal and other such statutory rights (Agency Worker Regulations 2010 – a missed opportunity?, 2010). In general, workers in the UK are entitled to the National Minimum Wage. Shirley In order to advice Erica, the Human Resource Director of the Cranford Computers Ltd, with regard to Shirley; the major issue to be considered is whether Shirley’s frequent absence from work, on health grounds, is permitted by the employment legislation. It is also to be examined, whether the Cranford Computers Ltd, is in breach of the provisions of the Health and Safety at Work etc. Act 1974. As an employee of Cranford Computers Ltd, for 2 years, Shirley is entitled to rights under the Employment Rights Act 1996. The time off rights of the Employment Protection Act 1975 (Employment Protection Act , 1975) were incorporated in the Employment Rights Act 1996. Some of these grant employees paid time off, whilst others permit unpaid time off. Section 50(4) of the Employment Rights Act 1996, specifies that the duration of time off and related conditions to be reasonable (Employment Rights Act , 1996). Thus, in Borders Regional Council v Maule, the EAT emphasised that the tribunal had to ensure a balance betwixt employee rights and employer needs (Borders Regional Council v Maule, 1993). In our problem, Julie, who was one of Shirley’s colleagues covering her absences, had protested at having to shoulder Shirley’s duties frequently. Julie had also demanded additional remuneration for this work, entailing additional costs for the employer. Whilst taking decisions in respect of Shirley’s absence, these factors have to be taken into consideration by Cranford Computers Ltd. With regard to Julie, there is no legal entitlement for working overtime. Furthermore, there is no specification regarding overtime pay and the only requirement is that the average pay should not be less than the National Minimum Wage. However, no worker can be compelled to work beyond 48 hours a week (Overtime). Every employer has to provide adequate safety and health provisions at the workplace (Lewis & Thornbory, 2010, p. 108). In Johnstone v Bloomsbury Health Authority a junior doctor successfully sued his employer, for having failed to provide such safety provisions (Johnstone v Bloomsbury Health Authority , 1992). Similarly, in our problem, the Cranford Computers Ltd has to implement adequate safety measures at the workplace. Shirley’s physician had issued a fit note, which certified that she was suffering from an ophthalmological ailment that would render it hazardous for her to operate machinery. If the employer had failed to implement adequate safety measures in the workplace and if Shirley’s ailment could be attributed to such failure, then the company would be liable for breach of the Health and Safety at Work etc., Act 1974. In the UK, under the Health and Safety at Work etc. Act 1974, the Health and Safety Executive and local authorities enact and implement health and safety legislation (Health and Safety at Work etc. Act, 1974). An employer has to maintain certain minimum standards. These include, maintenance of buildings and equipment, temperature, lighting, first aid, toilet and rest facilities, and the provision of potable water (The Workplace, (Health, Safety and Welfare) Regulations , 1992). In Corner v Buckinghamshire County Council, Slynn J opined that employer’s failure to pay for the time off period constituted failure to pay (Corner v Buckinghamshire County Council, 1978). Since, Shirley is an employee, who is unable to work due to her illness; she may be eligible for statutory sick pay; provided she had been sick, continuously for at least four days and her average weekly earnings had been in excess of £ 97 (Statutory Sick Pay - telling your employer you are sick and providing evidence, 2010). The Equality Act 2010 requires employers to effect reasonable adjustments to the workplace, in order to accommodate disabled employees. Consequently, Cranford Computers Ltd has to make suitable changes to their workplace, so as to accommodate Shirley. Moreover, the Equality Act 2010 precludes Cranford Computers Ltd from making Shirley redundant, on the grounds that her ailment could result in disablement. If Cranford Computers Ltd cannot accommodate Shirley, as most of their business is conducted on machines, it would have to establish that its decision was equitable and reasonable. Furthermore, Shirley should be permitted to participate in consultations that may declare her redundant (Employment rights and the Equality Act , 2010). As Shirley requires time off, due to her illness, her employer may have to pay her statutory sick pay up to 28 weeks, provided she can establish that she had been continuously sick for at least 4 days, and that her weekly earnings were greater than £97. Brenda In our case, Brenda had been working as an agency worker for 7 months with the Cranford Computers Ltd. It is to be examined whether her status as an agency worker will enable her to avail employment rights on par with the employees of the company. Agency workers have similar employment rights as employees, and several rights that protect them at work. These include paid holidays, rest breaks, working time limitations, protection from unlawful wage deductions, entitlement to the National Minimum Wage; and protection under equality legislation, and health and safety laws. Moreover, agency workers, in general, are not entitled to redundancy pay and face difficulty in claiming compensation for unfair dismissal (Employment rights for agency workers, 2010). The 2008 European Parliament’s Temporary Agency Workers Directive requires Member States to provide temporary agency workers with the same employment and working conditions as an individual recruited directly to that particular job (Directive 2008/104/EC of the European Parliament and of the Council, 2008). This Directive is to be implemented within three years of its enactment, and will enable the UK to implement the agreement between the Trade Union Commission, Confederation of British Industry and the Government (Culver, et al., 2009, p. 707). This agreement provides agency workers, who have completed 12 weeks at their job, with the same rights as employees. At the least, such agency workers will enjoy the same rights as those who had been directly recruited for that specific job (Wilcox, 2010). The Agency Workers Regulations (AWR), which will be effective from the 1st of October 2011, will promote agency workers’ rights, by implementing the provisions of the 2008 Agency Workers Directive (Osborne Clarke, 2010). Section 5 benefits, as per Section 7 of the Workers Regulations 2010, are available, only to agency workers who have worked with the same hirer, continuously for 12 weeks. Such agency workers are entitled to the same employment and working conditions, as individuals directly recruited by the employer (The Agency Workers Regulations, 2010). At times, the courts do not consider agency workers to be independent contractors. In Montgomery v Johnson Underwood Ltd, although the employment tribunal classified Montgomery as an employee (Montgomery v Johnson Underwood Ltd , 2001), the Court of Appeal dissented, as her employment agency lacked sufficiency of control over her (Bell, 2006, p. 23). In Astbury v Gist Ltd, an employee of an employment agency, was dismissed by the respondent; and the employment and appellate tribunals dismissed his claim of unfair dismissal, as it would have been contrary to the extant law to imply an agency term (Astbury v Gist Ltd, 2007). In Wickens v Champion Employment, an agency worker initiated legal action on grounds of unfair dismissal. The court held that there was only a contract of service and not a contract of employment between them (Wickens v Champion Employment Agency Ltd, 1984). Consequently, in our present problem, Brenda does not have any employment contract with the Cranford Computers Ltd. The case law addresses the peculiar position of agency workers. In Dacas v Brook Street Bureau, the Court of Appeal held that an agency worker, treated as an employee for a protracted period, should have the status of an employee (Dacas v Brook Street Bureau, 2004). Subsequently in James v Greenwich London Borough Council, the Employment Tribunal ruled that the Council was not obliged to provide her with work, in the absence of a mutual obligation betwixt James and the Council. It further ruled that James was not an employee of the Council, and set aside her claim of unfair dismissal. This ruling was upheld by the Employment Appeal Tribunal and the Court of Appeal (James v Greenwich London Borough Council , 2008). Similarly, Brenda was not under any mutual obligation to the Cranford Computers Ltd. Brenda is an agency worker of the Women Who Clean employment agency and not an employee of the Cranford Computers Ltd. As per the case law and the extant legislation, discussed above, she cannot claim redressal for unfair dismissal and redundancy pay, from the Cranford Computers Ltd. The Temporary Agency Workers Directive provides agency workers with the same rights as those recruited directly to that particular job. Thus, at present, Brenda cannot claim redressal against the Cranford Computers Ltd. HR Measures for Future Problems Human Resource Management (HRM) is crucial and bridges personnel management and business strategies. This promotes the effectiveness and overall performance of the organisation. An effective and motivated workforce results from the adoption of good practices in the recruitment of employees. These practices reduce employee absence, promote the wellbeing of the organisation and significantly reduce discrimination claims (European Social Fund, 2006). In the UK, the Asylum and Immigration Act 1996 restricts employers to the recruitment of persons with the necessary immigration authorisation to work in the country. Section 8(2) of this Act, renders it a criminal offence to employ individuals without such authorisation (Asylum and Immigration Act , 1996 ). Furthermore, the Police Act 1997 requires employers to check the criminal records of their employees. Moreover, section 1 of the Employment Rights Act 1996, requires employers to issue a Statement of Particulars to all their employees, within 2 months of their employment. An employment contract can be terminated by the employer or employee, by providing the stipulated notice. In the absence of such notice, a claim on the grounds of breach of contract, constructive dismissal or unfair dismissal, could arise (European Social Fund, 2006). Employers can prevent employee discrimination by incorporating Equal Opportunity and Diversity in all their policies and procedures. Moreover, performance management, which enhances the productivity of employees, should be made an integral part of the organisation (European Social Fund, 2006). The Protection from Harassment Act 1997, the Defamation Act 1996, and the Discrimination Laws, safeguard employees from sexual harassment; workplace discrimination based on gender, race and disability; and protects employees from abuse, harassment, and defamation (European Social Fund, 2006). The Health and Safety at Work etc. Act 1974, ensures the health and safety of workers (Health and safety legislation, 2010). Performance management should be limited to the objectives and standards of the organisation. It should clearly convey the expectations of the organisation to the employees (ACAS). Absence results in the loss of 8 working days per annum per employee, which results in heavy costs, loss of productivity and increase in the normal operational costs. Therefore, absence management procedures are indispensable in an organisation (Managing absence at work ). The unprecedented proliferation of computers necessitates satisfactory initiatives by the employer to reduce or eliminate the harm caused by display screen devices (The Health and Safety (Display Screen Equipment) Regulations , 1992). Rapid growth and a substantial employee base could cause the Cranford Computers Ltd to encounter problems of greater intricacy, in the future. Erica, the HR director, has to be well versed with the laws and procedures relating to the discipline and management of the company. As discussed above, Erica will have to implement a comprehensive absence management procedure; performance management; recruit skilled and efficient workers; and implement the existing laws, relating to various types of discrimination, in a fair and effective manner. Task 2 Discrimination Legislation Discrimination transpires, when personnel actions affect a term or condition in the employment, on the basis of age, colour, genetic information, disability, national origin, race, religion, or gender. (Antidiscrimination (EEO) Law Information, 2010). In the US, it is the responsibility of the Equal Employment Opportunity Commission (EEOC) to enforce federal antidiscrimination statutes. These statutes render it a criminal offence to discriminate against employees or prospective employees, on the basis of race, colour, religion, gender, national origin, age, and disability. It is also illegal to discriminate against a person who had complained about discrimination, filed charges of discrimination or who had participated in the investigation against employment discrimination (U.S. Equal Employment Opportunity Commission). In the UK the Disability Discrimination Act 1995 prohibits discrimination on the basis of the disability of an employee. It provides disabled workers with the same rights as the non-disabled workers, and establishes certain special provisions for the disabled employees (Sexual, Racial, Disabled Anti-Discrimination Laws). Title I and Title V of the Americans with Disabilities Act of 1990 protects individuals with disabilities, by prohibiting discrimination on the basis of disability. The Rehabilitation Act of 1973 prohibits employment discrimination on grounds of disability of the employees, in the federal government (Federal Equal Employment Opportunity (EEO) Law, 2009). In addition, the Genetic Information Non-discrimination Act 2008 protects employees against employment discrimination on the basis of genetic information. Legislation, in respect of Genetic Information Non-discrimination, is absent in the UK. In the US, the antidiscrimination laws of the EEOC are applicable to every organisation with 15 or more employees. Moreover, these laws encompass most of the labour unions and employment agencies. These laws apply to all categories of employment and workplace instances, such as hiring, firing, job promotions, training, benefits, payment of wages and harassment at the workplace (U.S. Equal Employment Opportunity Commission). The EEOC is empowered to conduct investigations into complaints of discrimination at the workplace, and attempts to settle the issue. In the event of its failure to settle the charge of discrimination, it files lawsuits against the employer, in order to uphold the rights of individuals (U.S. Equal Employment Opportunity Commission). In the UK, individuals, who have been treated unfairly at workplace because of their gender, race, or disability, can discuss such unfair treatment with their employer. The latter must immediately respond to their grievance. If the employer fails to do so, then the aggrieved employee can raise the issue with the appropriate authority (Sexual, Racial, Disabled Anti-Discrimination Laws). If the concerned authority fails to resolve the issue, then the employee can approach the Employment Tribunal. However, the Tribunal is to be approached, within 3 months of the occurrence of discrimination. Employment Tribunals are empowered to award compensation for the emotional and financial losses suffered by discriminated employees (Sexual, Racial, Disabled Anti-Discrimination Laws). Some Federal laws that address discrimination in workplace are Title VII of the Civil Rights Act of 1964, which prohibits discrimination against employees on grounds of gender, national origin, race, and religion. Moreover, the Equal Pay Act of 1963 maintains that men and women in the same organisation are entitled to equal wages for equal work (Federal Equal Employment Opportunity (EEO) Law, 2009). This Act prohibits wage discrimination based on the gender of the employees. In addition, the Age Discrimination in Employment Act of 1967 prohibits discrimination in employment on the basis of age (Federal Equal Employment Opportunity (EEO) Law, 2009). Similarly in the UK, the Equal Pay Act of 1970 stipulates that men and women are to be provided with the same wages and work conditions, if they perform similar work. EU laws on equal opportunity have supplanted this piece of legislation and ensured that individuals should be employed, only on the basis of their skills and abilities, and not their gender (Sexual, Racial, Disabled Anti-Discrimination Laws). In the UK, the Sex Discrimination Act 1975 makes it an offence to discriminate on the basis of gender or marital status. This Act applies to such diverse areas as employment, education, and the provision of goods and services. The Equal Opportunities Commission supervises and is responsible for the administrative enforcement of this Act (National Aids Trust, 2003). In the US, the Civil Rights Act 1991 provides remedial measures to the victims of intentional discrimination in employment (Federal Equal Employment Opportunity (EEO) Law, 2009). The Civil Service Reform Act prevents employees with authority to initiate certain personnel actions, from causing discrimination against employees and applicants. The prohibited personnel actions are discrimination on the basis of gender, age, disability, race, colour, and national origin. This Act disallows personnel actions based on attributes or conduct, such as marital status or political affiliation (Federal Equal Employment Opportunity (EEO) Law, 2009). In the UK, the Race Relations Act 1976 prohibits discrimination on grounds of race, and this prohibition applies to all the stages of the employment (Sexual, Racial, Disabled Anti-Discrimination Laws). The UK enacted the Equality Act 2010, thereby providing additional rights to individuals, against discrimination. As such, no employee can be discriminated on the basis of altered gender, marital status, pregnancy or maternity (Discrimination - In England, 2010).In the US, with regard to discrimination on grounds of conduct, the Office of Personnel Management has prohibited personnel actions that are based on sexual orientation. The Office of Special Counsel and the Merit Systems Protection Board enforce the prohibitions established by the Civil Service Reform Act (Federal Equal Employment Opportunity (EEO) Law, 2009). Conclusion In the US it is the responsibility of the EEOC to enforce anti-discrimination laws. In the UK, the EOC undertakes this duty. In both these countries, there are laws that prohibit discrimination on the basis of gender, race, religion, age, and disability. The US has enacted the Genetic Information Non-discrimination Act in 2008, whereas the UK has not done so. Consequently, in the US no employer can use genetic information with regard to employment terms or benefits. The EOC of the UK principally concentrates on discrimination on the basis of gender; whereas, the EEOC of the US has a more comprehensive scope, and addresses a much wider range of discrimination. Since the UK is a Member State of the EU, it is required to implement the EU law. For, instance the Equal Pay Act of the UK was replaced by the EU laws on equal opportunity. This has rendered the UK laws more beneficial to the employees. As such, in the US and the UK, discrimination on the basis of gender is strictly prohibited by the law. List of References Equal Pay Act . (1963). Civil Rights Act. (1964). Age Discrimination in Employment Act . (1967). Equal Pay Act. (1970). Her Majestys Stationery Office. Rehabilitation Act. (1973). Health and Safety at Work etc. Act. (1974, July 31). United Kingdom: © Crown copyright. Employment Protection Act . (1975). Her Majestys Stationery Office. Sex Discrimination Act . (1975). Race Relations Act . (1976 ). Civil Service Reform Act. (1978). Corner v Buckinghamshire County Council, IRLR 320 (1978). Wickens v Champion Employment Agency Ltd, ICR 365 (1984). Americans with Disabilities Act . (1990). Civil Rights Act . (1991). Johnstone v Bloomsbury Health Authority , QB 333 (1992). The Health and Safety (Display Screen Equipment) Regulations . (1992). The Manual Handling Operations Regulations . (1992). The Workplace, (Health, Safety and Welfare) Regulations . (1992). Borders Regional Council v Maule, IRLR 199 (1993). Disability Discrimination Act. (1995). Asylum and Immigration Act . (1996 ). Employment Rights Act . (1996). Her Majestys Stationery Office. Police Act . (1997). Her Majestys Stationery Office. Montgomery v Johnson Underwood Ltd , IRLR 269 (2001). Dacas v Brook Street Bureau, Civ 217 (EWCA 2004). Astbury v Gist Ltd, All ER (D) 480 (Mar) (2007). (2008, November 19). Directive 2008/104/EC of the European Parliament and of the Council. European Parliament and Council of the European Union. Genetic Information Nondiscrimination Act. (2008). James v Greenwich London Borough Council , Civ 35 (EWCA 2008). Federal Equal Employment Opportunity (EEO) Law. (2009, November 21). Retrieved December 20, 2010, from http://www.eeoc.gov/facts/qanda.html Equality Act . (2010 ). Agency Worker Regulations 2010 – a missed opportunity? (2010, December 2). Retrieved December 29, 2010, from http://idseye.com/2010/12/02/agency-worker-regulations-2010-%E2%80%93-a-missed-opportunity/ Antidiscrimination (EEO) Law Information. (2010, November 30). Retrieved December 20, 2010, from http://www.sec.gov/eeoinfo/antidiscrimination.htm Discrimination - In England. (2010). Retrieved December 20, 2010, from http://www.adviceguide.org.uk/index/your_rights/discrimination/equality_act_2010_discrimination_and_your_rights.htm Employers and Equality Act. (2010). Her Majestys Stationery Office. Employment rights and the Equality Act . (2010). Retrieved December 20, 2010, from Directgov: http://www.direct.gov.uk/en/DisabledPeople/Employmentsupport/YourEmploymentRights/DG_4001071 Employment rights for agency workers. (2010, November 30). Retrieved December 18, 2010, from http://www.uknetguide.co.uk/Employment/Article/Employment_rights_for_agency_workers-105498.html Health and safety legislation. (2010). Retrieved December 19, 2010, from Association of Teachers and Lecturers: http://www.atl.org.uk/health-and-safety/legal-framework/health-safety-legislation.asp Statutory Sick Pay - telling your employer you are sick and providing evidence. (2010). Retrieved December 20, 2010, from Directgov: http://www.direct.gov.uk/en/MoneyTaxAndBenefits/BenefitsTaxCreditsAndOtherSupport/Illorinjured/DG_175850 The Agency Workers Regulations. (2010). Retrieved December 19, 2010, from legislation.gov.uk: http://www.legislation.gov.uk/uksi/2010/93/regulation/7/made ACAS. (n.d.). Conducting Appraisals . Retrieved December 19, 2010, from https://obs.acas.org.uk/ViewEvent.aspx?EventId=184376 Bell, A. C. (2006). Employment law. Sweet & Maxwell. Culver, M. R., Schacht, N. A., Grindlinger, G. S., Ligorner, K. L., Reitz, A. E., Bjellerup, L., et al. (2009). Employment Law. International Lawyer, 43(2), pp. 707 – 724. Davies, A. (n.d.). Workplace Law Handbook 2011 - Employment Law and Human Resources Handbook . Workplace Law Group. Equal Employment Opportunity Commission. (n.d.). Overview. Retrieved December 20, 2010, from http://www.eeoc.gov/eeoc/index.cfm European Social Fund. (2006). HR Policies and Procedures Toolkit. Retrieved December 19, 2010, from http://www.lvstc.org.uk/docs/toolbox_hr%20policies%20procedures_toolkit.pdf Lewis , J., & Thornbory , G. (2010). Employment Law and Occupational Health: A Practical Handbook. John Wiley and Sons. Managing absence at work . (n.d.). Retrieved December 19, 2010, from https://obs.acas.org.uk/ViewEvent.aspx?EventId=184208 National Aids Trust. (2003, February). Overview of UK Anti-Discrimination Law Fact Sheet 6. Retrieved December 20, 2010, from National Aids Trust : http://www.heart-intl.net/HEART/Stigma/Comp/Anti-discriminationlaws.pdf Osborne Clarke. (2010, October). Agency Workers Regulations Update - October 2010. Retrieved December 18, 2010, from http://www.apsco.org/Article/Detail.aspx?ArticleUid=2F708325-A2A1-4B30-AF30-561C982F7079 Overtime. (n.d.). Retrieved December 29, 2010, from Directgov: http://www.direct.gov.uk/en/Employment/Employees/WorkingHoursAndTimeOff/DG_10028439 Sexual, Racial, Disabled Anti-Discrimination Laws. (n.d.). Retrieved December 20, 2010, from http://www.claims.co.uk/accidents-at-work/sexual-racial-disabled-antidiscrimination-laws.html U.S. Equal Employment Opportunity Commission. (n.d.). Overview. Retrieved December 20, 2010, from Equal Employment Opportunity Commission: http://www.eeoc.gov/eeoc/index.cfm Wilcox, B. (2010, October 19). Agency Workers Regulations 2010. Retrieved December 18, 2010, from Lords Hansard: http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/101019-wms0001.htm#10101933000037 Read More