A Solution for Tom with Reference to the Directive as the Employment Rights Act 2011 - Essay Example

?European Union Law [The of the will appear here] [The of the will appear here] [The of the [Date] Introduction The European Union Law has introduced certain laws as the Directive in order to protect the rights of employees working within the country. UK has implemented the Directive as the Employment Rights Act 2011. According to the Directive, employees have a right to minimum wage of 10 Euros or 8 pounds. It binds the working time to a maximum of 48 hours per week with all workers being allowed an annual leave of at least 6 weeks. The UK, having adopted the Directive, has remained silent on the issue of minimum wage while all other stipulations remain the same. Tom is an employee working as a nurse under a local organization by the name of Hoxon Council. Under his employment conditions, he is working an average of 50 hours per week after opting out of the 48 hours per week condition. His hourly wage is 6 pounds and he is entitled to 5 weeks annual paid leave. The overtime has led to deterioration in the health of Tom and even after filing a complaint with his superiors, he did not receive a positive response. This has led to certain implications for Tom which will be discussed within this paper. This paper would attempt to provide a solution for Tom with reference to the existing laws. Could Tom invoke the Directive against his employer? The Directive allows employees to file an appeal against the employer if the conditions of the Directive have not been met. This is done to aid the employees working within the UK and to prevent too much power in the hands of the organizations (Hartley, 2007). Tom cannot invoke the Directive against the employer for the overtime that he is working. This is because he has willingly opted out of the 48 hour weekly limit by signing a contract with the organization. Since the Directive allows employees to willingly sign out of the agreement, it will not consider the issue of Tom working for 50 hours a week. But in the case of the minimum hourly wage, Tom can invoke the Directive against the employer. The European Union Law has more power over the national law in the case that lesser rights are provided to individuals. The same case is apparent in this issue. The Employee Rights Act as adopted by UK is silent on the issue of minimum wage. However, the Directive stipulates that the minimum hourly wage should not be less than 8 pounds. Tom is only being paid 6 pounds by his employer which is less than the minimum hourly wage. Thus Tom has the advantage of invoking the Directive against the employee on the issue of the minimum hourly wage. Also in terms of the minimum annual paid leave, Tom can invoke the Directive against his employer. This is because right now he is getting 5 weeks annual paid leave according to the limit set by the Act but the Directive allows for 6 weeks annual paid leave. Here again the Directive has the power to forgo the Act and thus grant Tom 6 weeks annual paid leave. Since Tom is working overtime in order to make ends meet, the increase in hourly wage would positively impact his working conditions. He would not as a result suffer from the health conditions that he is suffering at this point of time. Would it be advisable for Tom to rely on the indirect effect of the Directive? The indirect effect of the Directive refers to the principle that national laws are under reinterpretation if they are inconsistent with the laws of the European Union. The indirect effect is thus a powerful tool that can be applied in order to bring about a change in the national laws to take into account the European Union Law. According to the ECJ ‘national courts are therefore under an obligation to interpret national legislation in accordance with the aims and purposes of the Directive’ (Owen, 2000). In this case, it would be advisable for Tom to rely on the indirect effect of the Directive. This is so because the indirect effect would allow him to file a valid case whereby the Employee Rights Act would be taken into consideration. They would have to be revised according to the stipulations of the directives. This would allow Tom to get a higher minimum wage. With a higher minimum wage, he would not have to do overtime. The Employee Right Act 2012, at this point of time is silent on the issue of minimum wage. This allows organizations within the UK to set their own standards for minimum wage which may not been feasible for the employee. The Directive in this case protects the employees from such conditions and Tom could thus rely on it for better wages. Could Tom initiate a state liability claim under Francovich? The Francovich Principle allows individuals the benefit of filing a claim against the organization if they believe that their rights are not being met and they are negatively impacted because of these rights. In order to initiate a state liability claim under Francovich, it is necessary to meet three conditions of the Francovich principle. These conditions include: 1. The rights that are been fought are for the benefit of an individual; 2. The rights can be identified through the laws of the Directives; and 3. There exists a relationship between these rights’ violation and the damage that the individual is suffering from (Jansen, Koster, Zutphen and Rechtspleging, 1997) The conditions of the Francovich principle require strict liability against the State for not implementing the laws of the Directive. In the case of Tom, his condition does allow him to initiate a state liability claim under Francovich. Since Tom is an individual who is fighting against the unfair rules of his organization and not the other way round, he qualifies the first condition laid down by the Directive. Also in accordance with the second stipulation of the Francovich Principle, Tom can identify his rights through the Council Directive 2009/XX on working conditions which demands that the organization upgrade its minimum hourly wage in order to benefit the individual. Tom has the benefit of the Directive to file a liability against the State in this case. The State is allowing organizations to set their own minimum hourly wage which may negatively be impacting the employees. Tom also qualifies for the third condition of the Francovich Principle. This is so because when the State is violating the rights set by the Directive, it is indirectly putting a pressure on the employees. The employees have to work extra hours in order to compensate for the low minimum wage. Also the number of annual paid leaves has been lowered. This is significantly impacting Tom as his health is deteriorating since he has to work overtime more often. Also his paid leaves are low which further impact his health. Thus, since Tom qualifies for all the conditions of the Principle, he is entitled to initiate a state liability claim under Francovich and from the given situation; we can expect that Tom would be able to win the case. References Hartley, T. 2007. The Foundations of European Community Law: An Introduction to the Constitutional and Administrative Law of the European Community, London: Oxford University Press. Jansen, R., Koster, D., Zutphen, R. and Studiecentrum, S. 1997. European Ambitions of the National Judiciary, Netherlands: Martinus Nijhoff Publishers Owen, R. 2000. Essential European Community Law, UK: Routledge Publications Read More