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Describe about the Essay on the Shaping Europe's Migration Policy New Regimes for the Employment of Third Country Nationals?

The smooth functioning of an organization, to a great extent, depends upon relation between the employees with the employer. If an employer enjoys certain rights, depending on which he can take various decisions in the company, the employees also have certain rights using which he can question the decisions taken against him.

In this Situation, Paul has worked in a large store in Central London for four years. One day Paul comes to the office drunk, misbehaves with the colleague and is even guilty of indulging in physical violence. Due to this incident, Paul is being dismissed from the job at once, without any prior notice. Though Paul initially blamed himself for the act but later realized that the dismissal can be termed as unfair and Paul files his claim to the local Employment Tribunal Office (Thursfield, 2015).

Under the Unfair dismissal Law in respect to misconduct, Paul is surely guilty of misconduct. According to the law, a person’s association with an organization cannot be terminated on the basis of him coming to the office being drunk. However, when the defendant indulges in physical violence the association is subject to termination. As a result Paul is held guilty, as Paul punches the floor manager in the left jaw.

As per the Employment Rights Act 1996 (Part 9, Dismissal notice and Reasons) that was passed under the UK Labor law employees should get a minimum of 1 weeks of notice period, once  they have completed a month’s period in the company before being dismissed by the company. After completion of 2 years, it will be minimum 2 weeks, for 3 years, 3 weeks, and so on. In this way, the notice period can move up to twelve weeks. Hence, Paul should have got a minimum of 4 week notice period as Paul has already served 4 years of professional life for the company.

The settlement agreement came in to force on 23rd July 2013. According to the employment rights act, the employer and the employee can mutually settle to an agreement. Here the employee will be called for a closed door meeting. The employee is allowed to bring one of   the colleagues as a companion as well as witness to the proceedings. The negotiations are always confidential. The employer gives away a written termination letter where negotiations will be clearly mentioned. The employee gets ten days to consider the agreement, and after the completion of period, both the parties will take a final decision (Jacobsa & Blitsab, 2012).

Employment rights act 1996:

In the above situation, both Paul as well as his employer has violated certain rules. On one hand, Paul is subjected to dismissal citing the employee’s misconduct; on the other hand, the employer should also have given the employee a warning before terminating his association. Hence, the best solution to this dispute is the ‘Settlement Agreement’.

Every organization adheres to certain rules and regulations to maintain a healthy employer-employee relationship, work ambience, welfare of the workers, etc. Both the employer and employee should comply with the rules, not following them may result to dire consequences. The employees face these consequences mostly in the form of termination of their job. In such a scenario unfair dismissal of an employee by the employer falls under certain scrutiny.

The Unfair dismissal law in UK is falls under the UK Labor Law. The UK Labor Law oversees the relationship between the worker and the employer, sees that the people at work in UK gains advantage from the various acts, laws and regulations and so on. Unfair dismissal, as the name suggests, refers to the termination of a person’s contract from an organization which is in contrast to the contract that the employer has signed at the time of his induction in the organization. Hence, the law demands just and fair treatment from the employer’s part as the employee’s job is in the threshold of terminations (Thursfield, 2015).

According to the UK law, an organization has the right to dismiss an employee on the basis of incapability and qualifications, once those incapabilities hold serious consequences to the organizations as well as the co-workers.

Suppose, any employee is unable to deliver his work with accuracy and at the rate the employee was asked by the organization or the employee is getting paid or it, this situation can result in termination. However, it will be illegal to terminate the period at once. The employee will be given a time period under which his performance will be monitored. Even if the person fails to prove the capabilities, dismissal can be done with certain compensation.

Dismissal of a person in the basis of medical incapability is against the law. However, there are certain instances when the organization has to take a call. The situations are as follows:

Nervous breakdown of an employee which results in unhealthy work ambience in the organization, as well as the person’s incapability to perform a work may result in dismissal.  The organization here also will be liable to pay the compensation (Lockton & Bunbury, 2013).

Settlement agreement:

Though physical disability reduces the capability of a person to perform, dismissing the employee will be against human ethics. Hence, it might result in decrease in monthly pay as the organization has to hire another person to do the assigned job.

Long period of absence due to ill health may result in dismissal; however the company will be responsible for the well being of the employee. In this issue the employee’s medical reports should be produced to the company to claim as a proof of his illness

Dishonesty:

Dishonesty at work can affect the company and can result in dismissal. Mostly, the dishonesty revolves around the situations where the person is found guilty of stealing.

Intake of drug resulting in violence:

A person is not viable to get dismissed when comes to the office being drunk. But when under the influence of the drug, the person indulges in bullying or physical violence, like hitting, and then the employee is subjected to dismissal.

Accessing obscene contents:

Accessing indecent videos or photos inside the work premises is viable to termination of the employment.

While setting a Hotel business in UK, There are numbers of legislations that have been adopted and for the welfare of the employees who work for motel or hotels. So that, companies can effectively utilise their employees, for example, working time regimes, in UK the legal regulation such as applying protection to a particular group protection and standardized limits of working time with the restriction of scheduled works and the regulation of “new” working-time arrangements. There are 3 general type of regulation in work-time regime based on the legally prescribed norms that operate alongside voluntary and customary norms for the creation of working time regime based on national system. Those 3 general types of regulations are a) market-based regulation based on individual level that is based on the demand of product or services, i.e. in this context if hotel or motel services get busy then the employer or employee can dedicated to their services and up to their individual level. b) Negotiated regulation is a collective agreement at the plant and industrial level (Apap, 2002). c) state-initiated regulation in which state and other statutory regulation intervention are important. That is where the entire legislation act as the same way as Canadian law. In Canada there has been a growing individualization, decentralization and diversification has been growing in Canada (Edwards, 2012). Though in UK the components of working time regime consist of – a) treatment of working –time arrangements that deviate from the general or rules and regulation; b) leaves for absence from work; c) Work based on paid time-off ; d) scheduled works and restrictions on the hours. In this scenario, Canadian style clashed with the strict time restriction of UK. In UK it is viable to take part time job but not in Canadian style. In Part time jobs have numbers of restriction in working time schedule. Even working time regime is affected by gender equality factor, i.e. female employees are tend to do more participation as labour force and the women with younger children are having the tendency to accept the shift of dual-earner households. On the other hand the aging of the population have led to a variety of working-time arrangements that do not conform to the norm. In UK part time has increased due to the range of family activities across worker’s family (Edwards, 2012).

In accordance to the UK Law, a company can dismiss an employee on certain grounds of incapability and misconduct:

To reconcile the differences, the company need to diversify its policies. Especially the equal pay provisions of act apply to some people who are the workers and may not the employees from legal view point, such as armed officers, police officers, office-holders. In this code, for convenience, these people are also referred as employees. As per the particular equality act, 2010, a woman who is doing an equal work with a man in the same employment is permitted to equality in pay and other contractual terms, unless the employer can discriminate based in the sex or any other material reason (Hope, Pearce, Whitehead & Law, 2014).

To permit the sickness, parental, maternity or compassionate care benefits and employees’ regular earning must be decreased by more than 40% and the employees across the organization need to have at least 600 insured hours in last 52 weeks or since the last claim. Employees who will qualify for the benefits must face a two-week waiting period and they are also able to take 15 weeks of benefits. Though there are numbers of rules and legislation have been applied in the scenario of UK hotel business, it will be beneficial if we take help of some of the technological tools and methodologies across the industry that will increase the revenue across the organization those are focused on hotel business (Jacobsa & Blitsab, 2012). For example use of IT solution across the organization will allow the privilege to manage data more effectively can let the organization impose law depending upon the activities across the organization and let the government also to monitor the activities across the organization. For example, use of IT solutions like ITIL-based iET ITSM solution that will help to manage all the IT related services in an organization and let all the work from different department to be integrated in an organization, for example, integration between accounts and marketing department (Lloyd, 2013). Integration between different departments allow monitoring employees performance and the employees records, such as records like leave details or rather the working details and calculation of their daily wages and days worked can easily be done with the help of this IT solution. Efficient use of data in an organized manner helps authorised person in an organization to go through the overall activities going on an organization. That authorised person is able to know whether internal activities are authentic or not and accordingly authorized person can take required actions. Sometime these IT solutions give desk based assistance and prioritize task or list of problems and address to specific level of management (Loafman & Little, 2014).

Unfair dismissal law:

The obvious question which arises when an organization changes hands is regarding the job security of the ones who work in such organization. There are various circumstances when this question may arise. These include;

During merger of a company

Sale of business

When a public sector activity is outsourced or sub contracted to the private sector

In Britain these types of transfers’ results in termination of the work contract of the employees and a new contract is entered into with the new owner. In the year 1977 Acquired Rights Directives (ADR) were implemented in Britain primarily to preserve the jobs of employees of the transferred undertakings. These directives were known as the Transfer of Undertakings (protection of Employment) Regulations, 1981 (McMullen, 2014).

The TUPE regulations provide that it is essential for the outgoing employer to consult with the employees through elected representatives. Such elected representatives might be trade unions. In case of absence of elected representatives, the employer is supposed to make arrangements for appointment of representatives for the purpose of consultation regarding the said transfer (Puma Policy Brief, 2015). All the information must be tendered in writing. These include;

The fact of transfer, reasons behind such transfer and when it will take effect.

Implications of the change on the employees and such implications may be economic, legal or social. For instance change in location of employment or risks of redundancies.

Measures the incoming and outgoing employer intend to take with respect to the employees, no matter how meager they are.

It is the liability of the outgoing employer to inform the employees regarding the changes which the incoming employer intends to take with respect to the employees (McMullen, 2011).

The employee of the organization which is being transferred has the legal right to object to such transfer. An employee in such a case must inform either the transferor or the transferee employer about such objection. The contract of employment would be terminated as a result of such objection. In that case the employee is considered to have resigned. On the other hand it is open to the transferor employer to re-engage the services of the employee according to agreed terms (Mirza, 2013).

When acquisition of a commercial undertaking takes effect the buyer has the right to protect it by offering a lower price. It is important that the transferee is aware of the obligations it is taking over as regards the employees. Thus the transferor is required by the TUPE Regulations to provide to the transferee ‘employee liability information’. Such information must include;

Dismissal in respect to incapability:

The age as well as identity of each and every employee who is being transferred.

Information regarding the statement of employment of such employees, which would include, written records as to the pay, working hours, holidays, etc.

Information regarding any agreements for collective bargaining

If any disciplinary action had been taken against any employee in the preceding two years, details about such action

In any action for grievance had been raised by any employee in the preceding two years, details about such action

If any legal action whatsoever has been ever brought against the employer in the preceding two years by any employee, details about such action (McMullen, 2011).

This information must be provided at the least fourteen days prior to the taking effect of such transfer, if at all it is reasonably practicable. TUPE Regulations permit dismissal of employees on the ground of redundancy. But the transferee employee must make sure that the said redundancy is fair. Redundancy would not be deemed to be fair if it is takes effect only for the reason that an employee is a transferred employee. This information would be helpful to the transferee employer while taking any decision regarding redundancy (Njoya, 2003).

TUPE Regulations provide that it is open to an employee to decide to not work for the new employer. The consequence would be resignation of the said employee. The employee does not have to give written notice to the employer only verbal communication is enough. If the terms of employment are being changed unfairly then the employer has the right to challenge such change and demand for unfair dismissal.

In the United Kingdom the ability of an employer to bring about changes in the terms and conditions of employment has always been a challenging process for the employers, more particularly when the transfer of employee was as a consequence of the TUPE Regulations. Recent court decisions have reflected that courts are allowing more flexibility to the employers while altering terms and conditions of employment, if the employer can show that such changes in the terms and conditions are owing to increase of efficacy of the business (Jefferson, 2007). In the case of Smith and Ors. v. Trustee of Brooklands College (Smith and Ors. v. Trustee of Brooklands College, [2011]) the court held that the decision to make changes in the terms of employee contract post TUPE transfer was lawful as they were being made so as to reflect the common industry practice and was not owing to the fact of the transfer. In the case of Enterprise Managed Services Ltd. v. Dance and Ors (Enterprise Managed Services Ltd. v. Dance and Ors, [2011]) the employer intended to change the terms of employment of the employees regarding working hours so as to meet a pre transfer requirement. The employees who were not agreeable to the changed terms were dismissed by the employer.

Incapability to perform his duty:

In the instant case the changed terms and conditions were better than the previous ones. As many as 50 employees have accepted the said new terms and conditions of employment. The change was effected after consultation with the trade unions. Thus the change may not be said to be unfair. Thus it is open to the employer to dismiss the employees who are not ready to accept the change. In fact the employees may themselves resign.

References

Apap, J. (2002). Shaping Europe's Migration Policy New Regimes for the Employment of Third Country Nationals: A Comparison of Strategies in Germany, Sweden, the Netherlands and the UK. European Journal Of Migration And Law, 4(3), 309-328. doi:10.1163/157181602322768920

Edwards, M. (2012). Employment Law – Ethical employment practices. Ac, 1998(5). doi:10.14296/ac.v1998i5.1603

Employment Law Information Network. (2014). Choice Reviews Online, 51(10), 51-5680-51-5680. doi:10.5860/choice.51-5680

Enterprise Managed Services Ltd. v. Dance and Ors [2011].

Hope, S., Pearce, A., Whitehead, M., & Law, C. (2014). Family employment and child socioemotional behaviour: longitudinal findings from the UK Millennium Cohort Study. Journal Of Epidemiology & Community Health, 68(10), 950-957. doi:10.1136/jech-2013-203673

Jacobsa, J., & Blitsab, D. (2012). US, EU and UK Employment Vetting as Strategy for Preventing Convicted Sex Offenders from Gaining Access to Children. European Journal Of Crime, Criminal Law And Criminal Justice, 20(3), 265-296. doi:10.1163/157181712x660195

Jefferson, M. (2007). TUPE: Law and Practice20071 Edited by Robert Upex and Michael Ryley. TUPE: Law and Practice . Jordans, 2006. xxviii + 415 pp. hardback £70 1st Edition. Managerial Law, 49(4), pp.185-186.

Lloyd, I. (2013). UK: New Directions in UK Copyright Law. Computer Law Review International, 14(3). doi:10.9785/ovs-cri-2013-94

Loafman, L., & Little, A. (2014). Race, Employment, and Crime: The Shifting Landscape of Disparate Impact Discrimination Based on Criminal Convictions. Am Bus Law J, 51(2), 251-314. doi:10.1111/ablj.12028

Lockton, D., & Bunbury, S. (2013). Employment law 2013-2014. Abingdon, Oxon: Routledge.

Marson, J. (2014). Beginning employment law. Oxon: Routledge, Taylor and Francis.

McMullen, J. (2011). Case law relating to service provision changes under the Transfer of Undertakings (Protection of Employment)(TUPE) Regulations 2006. ac, 2010(84).

McMullen, J. (2011). Transfer of undertakings: content and structure of the TUPE Regulations 2006. ac, 2006(66).

McMullen, J. (2014). TUPE: Ringing the (Wrong) Changes. The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014. Industrial Law Journal, 43(2), pp.149-169.

Mirza, S. (2013). Tupe or not Tupe?. Vital, 11(1), pp.48-49.

Mitchell, G. (2014). A Right to Care? Unpaid Care Work in European Employment Law. Industrial Law Journal, 43(1), 84-87. doi:10.1093/indlaw/dwt025

Njoya, W. (2003). The Interface Between Redundancy and TUPE Transfers. Industrial Law Journal, 32(2), pp.123-128.

Puma Policy Pbrief, (2015). Best Policy Guidelines for Contracting Out Government Services.

Rodgers, L. (2014). Public Employment and Access to Justice in Employment Law. Industrial Law Journal, 43(4), 373-397. doi:10.1093/indlaw/dwu020

Smith and Ors. v. Trustee of Brooklands College [2011].

Thursfield, D. (2015). Resistance to teamworking in a UK research and development laboratory. Work, Employment & Society. doi:10.1177/0950017014559967

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