EMPLOYMENT LAW

Sources of Employment Law

Employment law involves regulation of the workplace, and it provides for rights and responsibilities between employers and employees in a work relationship. Employment law mainly revolves around creating, maintain and terminating employment. There are various sources of employment law in the UK include legislation, common law, European law, codes of practice and regulations. Legislation is also known as Acts of parliament or statute law, and it is drafted and enacted by the legislative arm of the government (Lewis, & Sargeant, 2004, p. 3). 

The main legislation or statutes covering employment law in the UK include Employment Act 2002, Employment Act 2008, Employment Relations Act 2004, Employment Relations Act 1999, Equality Act 2010, Equal Pay Act 1970, Disability Discrimination Act 1995, Disability Discrimination Act 2005, Race Relations Act 1976, Employment Rights (Dispute Resolution) Act 1998, Sex Discrimination Act 1975, among other statutes. Common law refers to the laws made in courts through decision by judges. While solving a case, judges might consider sections from legislation and use them in making decisions which form part of the common law. Important decisions in courts of law are recorded in law reports, and they may be followed in new court cases (Lewis, & Sargeant, 2004, p. 6). 

Since the UK joined the European Union in 1973 through the European Communities Act of 1972, the UK started using the European law. European law affects different employment laws in the area of equal pay, health and safety, sex discrimination, among other areas. The main sources of European law include treaties, decisions, regulations, directives, recommendations, and opinions (Kidner, 2009, p. 14). In case there is a conflict between the national and the European law, the case must be decided on the basis of European laws and principles. This means that the national legislation should be consistent with European Union treaties, directives, and rulings by the European Court of Justice. This principle applies even in situations whereby national legislation comes before or after a particular directive. For example, European Communities Act 1972 requires effective EU obligations to be enacted as a free-standing right and responsibility. 

In the McCarthys Ltd v Smith case, a reference to the European Court of Justice led to the use of Article 157 TFEU on equal pay. Codes of practice and regulations are used to guide parties on what is good practice when it comes to employment. However, if a party breaches a code, they are not liable for criminal or civil wrong doing. The breach of code can only be used as evidence in the court of law.

Institutions and enforcement systems for individual employment rights

In the case whereby a plumber was employed as a contractor to work in a construction site and gets injured while in the working site, it is important to understand the type of employment law that applies. According to the UK employment law, there are three types of workers, the self-employed independent contractors, agency workers, and employees. An independent contractor is one who is responsible for themselves and makes their own decisions. Under the Employment Rights Act 1996, an employee is a person who has entered into a contract of employment while an agency worker is a person who has entered into work through a contract of employment or in another contract whereby an individual agree to perform duties on behalf of another party (Selwyn, 2008, p. 44). 

For a plumber who was employed as a contractor, the plumber is considered an employee of B. According to the Employer’s Liability Act 1969 (Compulsory Insurance), an employer should have an insurance to cover injuries that employees get as a result of an accident at work or becomes ill as a result of the work. The plumber is employed as a contractor as he has entered into an agreement with B. an employment contract definitely exists between plumber A and employer B because A accepted the job offered by A. Under the Health and Safety at Work Act 1974, the employer has the duty to ensure the health and safety of their employees by providing a safe place to work, adequate equipment and materials, protect employees from unnecessary risk of injury, among other responsibilities involving employee safety. 

Under the Employer’s Liability Act 1969, the plumber is barred from suing the employee for injuries that occur in the working site. This is because the employer provides a compensation or insurance for employees to cover any injuries that occur in the workplace. In order to enforce his contractual right under the Employment Legislation, the plumber will need to prove that the injury was related to the workplace and that the employer failed to provide compensation to cover the injuries. The plumber can approach the Advisory Conciliation and Arbitration Service (ACAS) for arbitration when suing the employer. Arbitration is voluntary, and the parties should agree to submit to the decision of the arbitrator. However, the decision by the arbitrator is not legally binding, and a party might fail to commit to the decision. The plumber can also approach the Health and Safety Executive (HSE) which was established by the Health and Safety at Work etc. Act 1974. HSE is an enforcement agency, and it may investigate and report reports of accidents and injuries at work. It ensures that all the provisions of Health and Safety at Work etc. Act 1974 are enforced (Kidner, 2009, p. 22). 

Nature and scope of the employment relationship in its legal and business context

Differences between employees and independent contractors

The contract of employment refers to an agreement between an employer and employee that binds a relationship between the two parties. The content of each contractual relationship depends on the nature of the job offer, even though there are certain standards in the terms and conditions. A contractual relationship defines an employment status and determines if one is an employee or self-employed. A contractual relationship whereby an employer decides what an individual does and even provides the needed training and tools to do the job is known as an employment contract, and such an individual is known as an employee (Selwyn, 2008, p. 59). 

The contractual relationship John is therefore an employment contract. A contractual relationship whereby an employee agrees to provide service but the employer does not does not control the employee or provide the needed tools and training is known as self-employment, and such a contract is independent. In Ready Mixed Concrete South East Ltd. v. Minister of Pensions and National Insurance, a truck driver was under the contract of self-employment and was required to provide his training and tools to do the job. In addition, he was required to find his replacement when he was not available for the job. In O’Kelly v. Trusthouse Forte P.L.C., the industrial tribunal considered various factors while considering the existence of an employment contract. The court mainly focused on economic dependence between the employer and employee, and when the employee is dependent, then the contractual relationship is self-employment, and when the employee is not dependent, then the individual is employed (Selwyn, 2008, p. 62).

Nature and scope of employment contracts

A contract for service occurs when an independent and self-employed individual enters into a contract of employment whereby the individual provides his own skills and tools without supervision and performs work without supervision. A contract of service is an employment contract whereby an individual enters into a contract of employment and agrees to be under the supervision of the employer and is expected to work at a specific place under specific conditions provided by the employer. In Market Investigations Ltd. v. Minister of Social Security, while deciding whether a contract is for service or of service, the question to be considered is whether the person who agrees to perform services is a business on his own account. If the answer to the question is yes, then the contract of employment is referred to as a contract for service, and if the answer to the question is no, then the contract of employment is a contract of service. In Market Investigations, the court considered various factors while considering if the type of employment contract including if the individual is under control by another individual, if the individual bore the financial risk, provided necessary equipment, hired his own employees, invested his own capital, or is paid on a piecework basis. 

The effect of European Union legislation on the employment relationship

Since Britain became a member of the European Union in 1973, the EU laws held supreme over national legislation in Britain. This occurs even after the British legislation came before or after the EU laws. In situations where both British and EU employment laws applied, the EU laws are given preference. In McCarthy’s Ltd v Smith, Mrs Smith, who was employed to manage a stockroom earned $50 per week. However, she discovered a man who previously held the job position earned $60 weekly and she claimed for equal pay. Article 157 TFEU of European Communities Act 1972 on equal pay was applied when the case was referred to the European Court of Justice. The EU legislation has also enabled foreign workers to pursue unfair dismissal in the UK. 

In Duncombe and others v Secretary of State for Children, Schools and Families [2009] EWCA Civ 1355, the UK court of appeal held that an employee who was dismissed on the basis of a purported expiry of term of service could claim unfair dismissal. The European Fixed-Term Working Directive (99/70/EC) was effectively used to decide on the case. The use of EU legislation has also made it possible for sick employees to reclaim holiday leave. For instance, in HM Revenue & Customs v Stringer [2009] IRLR 214, the EJC held that an employee must continue to have holiday during sick leave.

Reasons and methods of terminating the relationship

Employment contract can be terminated through different methods and for various reasons. Employees can end an employment contract by resigning, or the employer can end the employment contract by dismissing an employee. However, the employer needs to give the employee a notice of employment termination for one month or more. The employer should also be clear on the grounds of the dismissal before ending an employment contract. However summary dismissal which refers to dismissal without notice can be used in situations of gross misconduct for example in cases of theft, violence or fraud (Jaarsveld, 2009, p. 7). 

An employee may also end an employment contract in case of cessation of work/relocation of business and that services offered by the employee are no longer required. Employment contracts can also end through instant dismissal whereby an employer wants the employee to stop working immediately. In such a situation, the employer is required to pay the employer a sum in lieu of notice or give compensation for failing to give notice. An employee can end an employment contract when the employer constantly subject employee to degrading/undermining behaviour (Kidner, 2009, p. 287) 

Legal provisions concerned with discrimination and health and safety in a legal and business context

Legal provisions on discrimination to particular cases

The Sex Discrimination Act 1975 is a legislation that makes it unlawful to discriminate against employees and potential employees on the basis of gender or marriage. Under the Sex Discrimination Act, it is unlawful for employers to discriminate against women both directly and indirectly. The Equality Act 2010 makes it unlawful for employers to discriminate against age, disability, gender reassignment, sex, religion or belief, sexual orientation, marriage, civil partnership, pregnancy and paternity, and race. Section 19 of the equality act defines discrimination on the basis of sex or gender as indirect discrimination as the employer applies a provision, criterion or practice (PCP) to the employee or potential employee putting the employee at a particular disadvantage. Section 14 of the Equality Act allow an individual to file a claim following discrimination or being treated less favourably because of their age, gender, sex, sexual orientation, disability, religion or belief. However, proving discrimination is hard and especially so if the claimant is a potential employee. It is therefore necessary for Amina to seek advice from a solicitor before making a claim for compensation against discrimination. 

The Equality Act 2010 is however a developing law and so the law will only apply if Amina was subjected to the unlawful treatment on or after October 1st 2010. Human resources management practices are mostly influenced by employment laws and regulations as they provide a legal framework necessary for managing employees. However, the Equality Act 2010 is still a developing or new law, and hence the provisions could still not be clear. Some employers consider employment regulations, especially the developing ones to be burdensome and complex. Some employers are not aware of the impact of the Equality act on their businesses, especially on their HR practices (CIPD, 2015). 

Relationship between the developing law on discrimination and human resource management practices

The Equality Act 2010 makes it unlawful for employers to discriminate against employees or potential employees on the basis of their gender, age, sex, race, sexual orientation, marital status, religion, or pregnancy. Apart from the Equality Act 2010, The Sex Discrimination Act 1975, The Race Relations Act 1976 and the Disability Discrimination Acts 1995 and 2005 make it unlawful for employers to discriminate against their employees on the basis of sex, race, and disability, respectively. Regulation is the main factor that influences HR practices, especially when it comes to equality. For instance, some employers develop their best practice in employment relationship on discrimination and human resource management practices to comply with the Equality Act, Health and Safety, Working time directive and Agency workers regulations. However, some employers are not always aware of the impact of regulations and the HR practices are usually based on retention and productivity instead of employment regulation. While most employers are mostly concerned with finding the best candidates who have the needed education, work experience, and skills, equality legislation always has an impact on the recruitment process. 

One of the companies that the best human resource management practices in the UK is Diageo. What sets Diageo apart from other companies in the UK are the innovative practices and integrity in HR management. The company uses a formal system made up of formal policies and practices to manage its workforce. Using the best human resource management practices enables employers to adopt practices that work best for their businesses and ensure employee retention. Most companies, including Diageo, consider employment regulation as both necessary and fair as it ensures that there is protection of employee rights and that employers have a legal framework for managing employees. Diageo rarely experiences issues related to employment regulation, such as unfair dismissal or discrimination.

Evaluation of health and safety practice in a given organisation and compare to best practice

Health and Safety Regulation ensures that all organizations engage in health and safety practice. Some of the health and safety legislation in Britain include The Health and Safety at Work Act 1974 that outline the individual responsibilities of employees in ensuring a healthy and safe workplace, the Food Hygiene Regulations 2006, among other regulations. The Health and Safety at Work etc Act 1974 is the main basis for health and safety practices in the UK. Under the act, employers have general duties toward employees and the general public to ensure health and safety. In addition, employees have responsibilities to themselves and others to ensure safety. While the law does not require companies to take measures to avoid risks, it requires good management skills to identify risks and take measures to address them. 

The Management of Health and Safety at Work Regulations 1999 provide directions on what employers are supposed to do to ensure health and safety according to the Health and Safety at Work Act. Westinghouse Springfields is a company that has been recognized for its exceptional approach to occupational safety and health. Westinghouse Springfields is a company that specializes in providing in nuclear fuel for pressurized water reactors (PWRs), boiling water reactors (BWRs) and AGRs across the globe. Due to its outstanding health and safety practice, the company has been recognized by the Royal Society for the Prevention of Accidents (RoSPA). Westinghouse Springfields has gained a gold award every year for its health and safety practice (Reuters, 2015, p. 1). 

Impact on the employment relationship of the developing law in the areas of human rights and data protection legislation

Impact of Human Rights provisions on employment contractual relationship

The Human Rights Act 1998 provides protection to the rights and freedoms of workers, and it is based on the European Convention on Human Rights (ECHR). The Human Rights Act 1998 provides for fundamental rights and freedoms as specified by the ECHR. These rights include those affecting life and death, as well as everyday life. The rights are not absolute, meaning that governments can limit or control them in situations of severe need or emergency. If any of the human rights stipulated by the Human Rights Act are abused, one has the right to an effective solution by the law. The Human Rights Act requires UK courts to interpret UK legislation in such a way that there is compatibility with the ECHR (Kidner, 2009, p. 118). 

Most of the principles of the Human Rights Act are meant to protect the worker at the workplace. Some of these rights include a right to private life and family, freedom of religion, thought and conscience, freedom of expression, freedom of assembly and association, and a right to be a member of a trade union to improve workplace conditions. However, the employer has the right to monitor communications in the workplace, but the employee should be aware of such monitoring activities. The monitoring activities can cover emails, telephone calls, data, internet access, and images. Every employee has the right to see the information that is being held about them. 

However, having a right to private life means that the employee cannot be monitored everywhere. If one works in the public sector, it is considered unlawful for the employer to violate human rights under the convention unless there is an act of parliament that provides for such violation. If the employer is in the private sector, one cannot make a claim against the employer for breaching human rights. However, it is always important to talk to the employer first in case an employee believes that their human rights at work might have been breached. If one is still dissatisfied after this, it is important to follow the internal grievance procedure as dictated by the employment contract. If there is no set grievance procedure, an employee can set out their complaint in a letter and hand it to the line manager or HR manager. The employer can then be able to arrange for a grievance meeting with the employee. If the employee is still unsatisfied by the outcome, he or she can appeal to a different manager, and if the outcome of the appeal is still not satisfactory, then a legal action can be taken. It is however necessary to consider legal advice before taking a legal action as human rights law can be complex, especially on employment contractual relationships (Kidner, 2009, p. 123).

Application of the data protection principles and the rights of data subjects in a given organisation

The data protection laws exist in order to ensure the rights of individuals to privacy and limit the ability of an organization to use the data for other purposes (Kidner, 2009, p. 310). The Data Protection Act of 1984 provides basic rules of registering the users of data and the rights of access for the data owners. The Data Protection Act 1998 revises these rules and rights by providing different rights regarding personal data. According to principle 6 of the Data Protection Act, there are various rights that individuals have regarding personal data that organizations hold about them. 

The rights include a right to access a copy of the information, a right to object the processing of data in ways that could cause harm or distress, a right to prevent using the data for direct marketing, a right to object the decisions that are taken through automated means, a right to have the data rectified, blocked or erased in certain situations, and a right to claim compensation for any breach of the act (N. a., 2015, p. 1). 

Data controllers should ensure that there are proper technical and organizational measures to ensure that the personal data is safeguarded against destruction, loss, unauthorized access or disclosure. The applications of Data Protection principles and the right of Data-subject in Pride & 7 Co have not followed the Data Protection Act principles as the company has disclosed David’s personal information to other organizations. This happened even after David never authorized the company to disclose his personal information to other organizations or statutory bodies. Pride & 7 Co has definitely breached the Data Protection principles by sharing David’s information with other organizations without his consent. 

 

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