Atypical Workers and Employment Rights - Essay Example

Atypical Workers and Employment Rights Introduction Employment that is not regular, full – time, or based on indefinite contracts of employment, isclassified as atypical work. Specifically, it denotes part – time, fixed – term and temporary work. Such work in the recent past has shown considerable growth. Moreover, there have been serious concerns regarding the exploitation of atypical workers. These developments have led to important legislative interventions, which in the main have emanated from the EU law (Daly & Doherty, 2010, p. 52). Labour legislation adopts the following five stances; namely, prohibition; conversion; encouragement or discouragement; and normalisation with parity and normalisation without parity. The related regulation has brought about typification, tolerance, stabilisation, promotion and acceptance of some varieties of atypical work (Countouris, 2007, p. 142). Contemporary firms, in general, require and admit of considerable flexibility. This makes it imperative for the labour law to accord legal certainty for the forms that make it possible to acquire flexible work. A recent development in this area is that part – time, fixed – term and agency workers do obtain a measure of protection under the extant employment law (Countouris, 2007, p. 142). These forms of work have been acknowledged and described by doctrine, jurisprudence and the law. Moreover, such work has been considered to belong to unambiguous contractual structures. Consequently, such workers are recognised in the UK as employees. The legal status of atypical workers has been clarified due to typification, which accords it legality. On the Continent, such work has been recognised with reservations, by the labour law. Furthermore, such recognition was accorded only when such work could by typified contractually (Countouris, 2007, p. 142). However, over time, employment law has strived to accord social stability to atypical forms. As such, a fourth of the workforce of the UK consists of part – time workers. These workers constitute a segment of the atypical workforce, and are the focus of attention of the European Community Commission. In the year 1990, three directives were issued, with regard to atypical workers. These directives relate to the distortion to competition, working conditions, and the health and safety of temporary and part – time workers (Dickens, 1992, p. 3). This initiative was within the social facet of the Single European Market. Consequently, several decisions have been forthcoming from the European Court of Justice (ECJ) that could bring about far reaching changes to the status of part – time workers in the UK. There has been significant development of the legal framework, and demographic change. Moreover, the trade unions have shown a greater willingness to negotiate for better rights for the part – time workers. Consequently, the advantages of paying less and the numerical flexibility provided by such workers are no longer available to employers (Dickens, 1992, p. 3). This development has deprived employers of a cheap source of labour that could be exploited. Legislation and Case Law In general, in the secretarial and medical professions, it is commonplace for agencies to provide workers for their clients on a temporary basis. In addition, it had also been a widespread practice to subcontract labour in the construction industry. Only a few of the categories, among the atypical workers are subject to specific laws. One such piece of legislation is the Employment Agencies Act 1973. The Employment Agencies Act 1973 enjoins that agency workers have to be provided with written details regarding some of the terms of their work, such as their employment status (Leighton, 1986, p. 36). This Act was enacted, in order to counteract the corruption and incompetence of some agencies. However, the law of the UK does not insist upon the provision of employee status to workers by the agency. Nevertheless, it is the general presumption that the employment relation is with the agency and the client. Several research studies have revealed that practical compulsions frequently result in most of the agencies according an employee status to workers. This state of affairs was tested in Wickens v Champion Employment, and the Employment Appeal Tribunal held that the workers of the agency were self – employed, despite the presence of written statements to the contrary (Leighton, 1986, p. 37). This decision made it clear that agency work was indicative of the absence of mutual obligations, care, and continuity, which were the essential features of an employment contract. The tests employed by the courts to establish an employment status have failed to address the ramifications of agency work. It is apparent that it is not the usual practice, in the UK, to lend workers for a specific task or period. Some instances of this uncommon practice are to be found in teaching, management and some areas of skilled manual labour. Thus, it seems likely that during the period of loan the majority of the workers continue to be the employees of the original employer. This was affirmed in Mersey Docks v Coggins (Leighton, 1986, p. 37). As such, the Part Time Workers Regulations render it unlawful for an employer to accord less favourable treatment to a part – time worker, in comparison to a full – time worker. Every worker, regardless of whether they are part – time or full – time, is governed by these Regulations. The preclusion of discriminatory treatment by employers, include the contractual terms of the employment and any other detriment resulting from other acts of the employers (Hall, 2012, p. 40). Consequently, part – time workers are entitled to receive pay and job benefits, proportional to what is provided to the full – time workers. They also have the right to be provided with a written statement that specifies the reasons behind their being provided with less favourable treatment. In addition, such workers are eligible for protection from being dismissed for having claimed the rights provided by the Part Time Workers Regulations (Hall, 2012, p. 40). As such, these Regulations have accorded protection to the part – time workers in the UK. In addition, due to the Agency Workers Directive, the UK had to enact the agency workers regulations. These enjoin that individuals, who have been employed for more than 12 weeks through an agency, are not to be treated less favourably than the workers of the original employer are. Some of the areas that are covered by these Regulations are annual leave, pay, health and safety, breaks and limits on work time, protection under the equality act, and unlawful deductions in the wages paid to them (Hall, 2012, p. 40). Moreover, Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part – time work concluded by UNICE, CEEP and the ETUC, relates to atypical employment. This Directive makes it unlawful to discriminate against part – time workers. It mandated pro – rated pay, and obliged the elimination of laws that restricted part – time work (Havenstone, 2010, p. 326). Furthermore, it encouraged employers to attend upon requests to transit from part – time to full – time work or vice versa. This Part Time Work Council Directive 97/81/EC is aimed at eliminating discrimination, in any form, against part – time workers; and expediting the development of flexi – time and part – time work. This Directive requires the Member States to make certain that no part – time employee is treated less favourably than a comparable full – time employee is, merely because the employee is working part – time. Small employers are not provided with any exception in this context (EC directive 97/81/EC of 15th December 1997 - the part-time work directive - and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, SI 2000/1551, 2012). However, a Member State is permitted to restrict access to specific employment conditions, on the basis of period of service, time worked, or earnings qualification, in instances where such constraint is justified by objective reasons. Moreover, this Directive has been implemented by the UK Government as the Part time Workers Regulations 2000. As such, part – time workers have been guaranteed, since the year 1995, the same protections by statute, with regard to their employment, as the full – time workers. Moreover, the Working Time Regulations of the UK apply to all categories of workers (EC directive 97/81/EC of 15th December 1997 - the part-time work directive - and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, SI 2000/1551, 2012). Additionally, Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, stipulates that there should be no discrimination against fixed – term workers. It obliges employers to inform such workers about the permanent opportunities. Moreover, it mandates that the national legislatures should describe the conditions essential for permitting fixed – term contract. In addition, the maximum total duration of successive fixed – term contracts have to be stipulated; and the number of renewals of fixed – term contracts have to be limited (Havenstone, 2010, p. 326). Lastly, in the year 2008, Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, was passed. This Directive was the outcome of protracted negotiations between the UK and the rest of the Member States of the European Union (EU), which lasted six years. It grants equal rights to temporary workers, subsequent to a qualification period of 12 weeks (Havenstone, 2010, p. 326). The following case- law reveals the attitude of the courts in respect of atypical employment in the UK. For example, in Heatherwood and Wexham Park Hospitals NHS Trust v Kulubowila & Others, the Employment Tribunal had indicated a contract of employment between the end user and the agency worker. This was set aside by the Employment Appellate Tribunal, which affirmed that it was not the task of the Employment Tribunal to formulate social policy, in situations wherein legislation had not made social policy. The Appellate Tribunal also stated that unfair dismissal had not been extended by the legislation to bring workers under its ambit (Govier, 2010). This had been well within the power of the Government, but it had deliberately preferred to remain aloof. However, in the UK, agreements entered into by the parties to regulate their duties and prerogatives, assume significance, and this is all the more important with regard to instances, in which there is no relevant regulation. The absence of statutory provisions makes it imperative to interpret the conduct of the parties, based on the common law principles. In this context, the test of mutuality of obligation assumes a pivotal role. This test examines mutual exchange between the employer and employer, work for remuneration, and mutual obligations for future performance (Ratti, 2009, p. 851). This test has proved to be singularly effective, in cases involving a trilateral work relationship, as demonstrated in Montgomery v Johnson Underwood. In this case, the contention was regarding an individual who had been engaged by an agency, with the express intent of providing the services of a receptionist to a third party. It was to be determined whether this individual was under a contract of service with the end user or the employment agency (Ratti, 2009, p. 851). The Court of Appeal opined that the necessity for control by the potential employer and mutuality of obligation were indispensable to establish a contract of employment. It was held that the receptionist did not have a contract of employment with the agency or the user, as she was devoid of the minimum obligation of control and mutuality. This is in direct contrast with the Italian law (Ratti, 2009, p. 852). From the perspective of mutuality, agency workers do not fall under the purview of labour law. The latter does not require the agency to make available a future assignment. In addition, there is no duty to accept, on the part of workers, after the contract ends. However, within the term of the contract, the agency is required to make available a definite income guarantee, to take care of periods when there are no assignments (Ratti, 2009, p. 852). This makes it inequitable for workers to refuse work proposals during such times. The atypical workers are frequently employed in the hospitality industry. Thus, this industry employs agency workers, casual workers, fixed – term workers, apprentices and consultants. A large number of atypical workers constitute part – time workers. The latter have been described as individuals whose payment is based on the time for which they work, and who are customarily not full – time workers. This definition has been provided by the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Consequently, many individuals who are paid by the hour will be classified as part – time workers, as long as they work for a lesser number of hours than the full – time workers do (Hall, 2012, p. 41). These regulations are aimed at preventing part – time workers from being treated in a less favourable manner than their full – time counterparts are. In other words, part – time workers cannot be accorded less favourable treatment, because of their part – time status. Several categories of the atypical workers fall under the purview of the Agency Workers Regulations 2010 (Hall, 2012, p. 41). As a result, agency workers have to be provided with the same access as the full – time workers to communal facilities and information regarding job vacancies. Subsequent to the completion of the 12 – week qualifying period, agency workers obtain entitlement to the same fundamental working conditions as the equivalent full – time staff (Hall, 2012, p. 41). Furthermore, the standard rights provided by the Employment Rights Act 1996, may also be applicable. These rights pertain to protection from unfair dismissal and statutory minimum rates, among other issues. Such relevance is determined by the status of the individual as a worker or employee (Hall, 2012, p. 41). As such, unfair dismissal rights are not relevant to workers, irrespective of the period of their service. Moreover, the Equality Act 2010, which is chiefly pertinent to discrimination based on gender, race, belief or religion, disability, or age, applies to all workers. This Act becomes applicable from the moment that the worker commences to interact with the employer, and is independent of the length of employment (Hall, 2012, p. 41). In addition, employees are protected by the Sex Discrimination Act 1975, Equal Pay Act 1970, Employment Equality Regulations 2003, Race Relations Act 1976, Employment Rights Act 1996, EC Equal Treatment Directive 76/207, and the Protection from Harassment Act 1997 (Employment Rights, 2012). Conclusion As such, the category of atypical worker includes any worker who is not employed full – time by a single employer. Since atypical employment is a proven beneficial choice for contemporary workers, there is every necessity for protecting their rights, irrespective of the type of employment undertaken by these people. It can be concluded that, although atypical workers are guaranteed rights under several acts in the UK, these are not provided to them to the fullest extent possible, due to the issues of absence of control and mutuality of obligation, which are taken into consideration by the courts, while deciding the status of their employment. 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