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PGM301 Employment Law

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  • Course Code: PGM301
  • University: Middlesex University
  • Country: United Kingdom

Questiions:

1. Know how to manage issues relating to pay and working time lawfully.

Summarise for managers the key issues they need to consider to manage pay, leave and working time lawfully. Ensure you include the major statutory rights, equal pay and maternity, paternity and other family friendly employment rights in the UK use examples and recent cases using Harvard referencing.

2. Ensure the staff are treated lawfully when they are at work.

Identify the major requirements of health and safety law and the significance of implied duties as regards the management of employees at work. Then explain the principles of law on freedom of association using examples and recent cases using Harvard referencing

3. How can you manage performance and disciplinary matters lawfully.

You work for a small organization which has never had to take formal disciplinary action against an employee before. You suspect a serious case will be arising in the near future.

 

Answers:

Introduction

Employment law also is known as labor law, which helps to maintain the relationship between an employee and an employer. There are several laws and regulations made to enhance the relationship of the employee with their employers and unions. In case these laws are not followed then illegal liabilities may occur.  The enforcement of these laws are done by the government agencies and they are legislative executive and judiciary. There are laws for child labor, the working time of labor, dismissal of an employee, health and safety of an employee whether it be a man or a woman (The City Law School 2016).

Body

1.

Pay- The minimum wage or the pay an employee must get totally depends on the type of their work and age. The National Minimum Wage is the pay that every worker gets on hourly basis. It is said that national minimum wage is less than national living wage and those workers get it who are over the age of twenty-five. The owner must pay the employee correct wage and must not depend on how small the work of an employee is. The worker must check their wage. According to section 78 of The Equality Act 2010 every employee whether male or female has the right to equal pay which means every single employee must receive equal pay for their work and to increase the accountability of the business. It is the duty of the employer to check whether the employees are getting proper minimum wage and they must repay the wage from their earlier jobs. The employees must have information about gender pay gap. The regulations under the Equality Act 2010 describes the information regarding employees, information regarding employers, ways of calculating the number of employees, time of publishing the information. If any employee violates these laws and regulations then it is considered to be an offense that is punishable or certain amount has to be paid. According to the case Lawrence v Regent Office Care Ltd (2003), it was said that the employer of this company only hired the male employees and the women employees who were already working in that company were being paid less as compared to the male workers. Further, the judgment of the court was that there should be no discrimination among the workers of the company and everyone should be paid equally (Garden and Slater 2018).

 


Leave- according to section 47c of Employment Rights Act 1996, an employee has the lawful rights to take leave which is related to maternity leave or sick leave or paternity leave. The statutory maternity leave is for fifty-two weeks. This leave is paid leave. There are certain employment rights that are protected when an employee is on maternity leave. There are some rights that include rising pay, extra build up holidays and return back to their work. There must be prior notice submitted to the employer to apply for maternity leave. There are certain organizations who discriminate amongst their employees for maternity leaves. They reduce the payment or working hours of women, demotion on their work, and refusal on promotion or fails to consult during their maternity leave. According to Nixon v Ross Coates Solicitors and another 2010, it has been said that there was gossip about an employee that she went to a Christmas party with her colleague and while the party was going on they went into a hotel room and after few weeks she was said that she was pregnant. After this news was spread in office she was discriminated and harassed in her workplace and was gossiped about her pregnancy. The request for her payment was refused and because of this, she had to go away from her work. The court held with the decision that the organization was wrong of not searching the exact matter of the pregnant woman and harassing her for no reason. No sex discrimination must happen in the workplace for maternity. There is another kind of leave that is friendly-family leave which says that an employee is allowed to take leave in an emergency for his or her family members. There are no such limits for this leave but it should not hamper the working conditions of the employee.

Work time- there are certain laws in the United Kingdom that sets the working time of the employees. According to Working Time Regulation if an employee works for an extra time then he must be paid additional compensation accordingly. Earlier, the working time carried between eleven to fourteen hours per day but with the growth of industries and machines, the working hours have increased to sixteen hours per day. Sometimes to meet the needs or to satisfy the demands of the business, the workers have to work for 24 hours. The Working Time Regulation determines the weekly working time, a way of working and daily and weekly time for rest.

 

2.

Health and safety law- according to section 15 of Health and Safety at Work etc. Act 1974, there are certain health and safety regulations that secure the safety of the employees. The safety of the employee must be the biggest matter of concern. The safety and security of the workers from nuclear, radioactive material, bomb explosions, and fireworks must be there. The laws stated in this act involves safety in concern with the workers. It is the duty of the employer to protect the welfare, health, and safety of their employees. It is the duty of the employers to give information about the risks in the place of work and how they must be protected and to deal with the risks. Risk assessments must be carried out to face all kinds of risks that might arise any time in a workplace. It is the responsibility of the employer to consult with the employees on the issues of health and safety. The consultation must be directly done by the employers or a safety representative must be appointed to do this work. The duty of an employer is to pay the amount that has been agreed to pay to the employee. Another responsibility of the employer is to provide the employee with the correct information in the contract. They must look after the rules and regulations of health and safety. Another duty of the employer is to give the employee opportunity to complain about them or their colleague. The mutual duty of both the employer and employee is to owe each other with mutual confidence and trust and must show respect to each other. According to the case Allison v London Underground Ltd [2008] EWCA CIV 71 (13 February 2008), the claimant was working in London Underground as a tube train driver. She got a disease called tenosynovitis. As she did not seek the advice of an expert she developed this disease. The judgment did not come out to be sufficient as it should be. The court of appeal held that there was the no-fault liability (Barnard 2014).

The term freedom of association means the right of the people to join or form the worker's organization like trade unions, committees of the workers, workers association, and others. It is regarded as the fundamental right that permits groups to work collectively for a common interest and action. The term collective bargaining is associated with the freedom of association. It is used when the workers together negotiate with the employers over grievances, employment or some other matters. Collective bargaining and freedom of association permit the workers to protect themselves and their families. This helps the companies' capacity to exploit the individual workers or group of workers. Both the parties that are the workers and the employers must come to an agreement that reflects their interest (Selwyn and Emir 2014). The rights of the workers must be noted down in several languages and must be posted in public place. If any worker is restricted to join the group of trade unions then there is a meeting held between the site management and the workers. According to the case Wilson v United Kingdom [2002] ECHR 552, it was said that discriminations were held by the employers against those workers who want to join trade unions. Article 11 of the European Court of Human Rights protects the fundamental right of the people to join the trade union and engage themselves in the activities of the trade unions and take actions for their rights. This case states that Mr. Wilson had worked for the newspaper called Daily Mail. This paper did not recognize the National Union of Journalist. The payment was increased for those workers who had taken individual contracts. As Mr. Wilson did not take the decision to shift to an individual contract he was not allowed to join trade unions. His salary was not increasing as fast as it was increasing for his colleagues. It stated that his rights were violated to join the trade union activities under the law of United Kingdom. In the end, the European Court of Human Rights held that the rights of the claimant had been violated (Taylor and Emir 2015).

 

3.

According to s. 94 to 134A of the Employment Relations Act 1996, wrongful dismissal concerns breaks the terms mentioned in the employment contract. On the other hand, unfair dismissal is said to be a claim which is based on this act. It administers the reasons for which the employer has to dismiss a contract, and enquires that it falls into the legal definition of what is ‘fair’ according to the law. According to s. 94 of the ERA 1996, the employer who has been working for the company for over two years has the right to claim for an employment tribunal which is composed of an employer, a judge and an employee representative to have a look at the decision. Meanwhile, an employee can only be dismissed if he himself decides to resign happily, or the company can only dismiss him because of some serious common trust issues. After the dismissal of the employee has been done the employer needs to show the valid reasons for proving it to be fair, according to the s. 99 to 107 of the ERA 1996, if the employer fails to prove the reason of dismissing the employee to be fair then automatically it turns unfair (Anderson, Brodie and Riley 2017). The employer meanwhile has different categories from which he can show the dismissal to be fair, the capability of the employee, his qualifications and conduct, or if the employee was jobless, some other considerable reason or because continuous employment might break the law. If the employer has an argument which is based on any of these categories, then the court estimates if really any sensible employee would have acted in the same manner. In a conduct case of HSBC Bank plc v Madden, the court of appeal said that it was adequate for a court to decide that dismissing an employee because of his partaking in thefts of credit cards was fair, even though there was no real evidence turned up by the police.

In the case of Western Excavating (ECC) Ltd v Sharp, Mr Sharp resigned because the company welfare officer declined to let him collect the holiday pay instantly. While Mr Sharp was in some financial trouble, and this happened due to his absences and therefore he was not acceptable in leaving, and also not constructively dismissed. According to s. 203(1) of the ERA 1996, Constitutional rights may not be limited or excluded, although under s. 203(2) and (3) allows employers and employees to settle a legal claim.

 


Meanwhile, some courts choose to be more admiring towards the employer’s practical reasons for dismissal, they strongly stress on the importance of the employer having a fair process. Thus the review standard lies in between an outright perversity or “Wednesbury unreasonableness” test and a fortnight reasonable test. Such test questionably needs the court to evaluate the conduct of the employer according to the good enterprise practice.

According to the s. 119 and 227 of the ERA 1996, the standard of a basic unfair dismissal award is that, with a cap of 350 per week and to a maximum of 20 weeks, an employee must receive one week’s pay for each year employed if his age is somewhere between 22 to 40, 1.5 weeks if over 40 and .5 weeks if under 22. Therefore, in the year 2011, The Supreme Court highlighted in the case of Edwards v Chesterfield Royal Hospital that in principle an employee may secure an injunction to continue working while the disciplinary procedures are followed. Particularly, they are given the difficulty to find an alternate employment after they are removed from work. In addition a specific right to be accompanied is provided to the employees in case of disciplinary hearings under section 10 of the ERA 1999. The employee can be accompanied by a member of trade union or a fellow worker or a person of his choice which disciplinary hearings are held by the employers. Thus the managers of the company have to keep in mind the above discussed provisions which dismissing any employee for the organization or else a claim for unfair dismissal can be made against them by the employee (Painter and Holmes 2015).

Conclusion

Thus form the above discussion it can be concluded that there are various provisions which employers have to comply with to avoid legal liabilities. The employer has to make equal payment for equal work and also provided relevant leaves to the employees as per law. The maximum working hours of 48 hours a week should not be forced to be exceeded by the employer. The employer must give the employees a safe and healthy work place as well as the right to freedom of association. The employer must also ensure procedural fairness while dismissing an employee form work.

 

References

Allison v London Underground Ltd [2008] EWCA CIV 71

Anderson, G., Brodie, D. and Riley, J., 2017. The Common Law Employment Relationship: A Comparative Study.

Barnard, C., 2014. EU employment law and the European social model: the past, the present and the future. Current Legal Problems67(1), pp.199-237.

Edwards v Chesterfield Royal Hospital NHS Foundation Trust and Botham v Ministry of Defence [2011] UKSC 58

Employment Relations Act 1996

Garden, C. and Slater, J.E., 2018. Comments on Restatement of Employment Law (Third), Chapter

Health and Safety at Work etc. Act 1974

HSBC Bank plc v Madden and Post Office v Foley [2000] EWCA Civ 330

Lawrence v Regent Office Care Ltd (2003)

Nixon v Ross Coates Solicitors and another (2010)

Painter, R. and Holmes, A., 2015. Cases and materials on Employment Law. Oxford University Press, USA

Selwyn, N.M. and Emir, A., 2014. Selwyn's law of employment. Oxford University Press, USA.

Taylor, S. and Emir, A., 2015. Employment law: an introduction. Oxford University Press, USA.

The City Law School, 2016. Employment Law in Practice. Oxford University Press.

Western Excavating (ECC) Ltd v Sharp [1978] ICR 221

Wilson v United Kingdom [2002] ECHR 552

Working Time Regulation

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