Employment Law Assignment
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The objective of the law of employment and its regulation is to provide some legal protection to the employers as well as employees and also the relationship that lies between the businesses (Collins 2018).
Some of the objectives of the employment law are:
The term social justice is the reason for distribution in society, and this distribution led to differences that are based on equality and opportunities in the same society we live in. And when it is considered within the workplace are, social justice also can define as the rights as well as fairness and its assessment (Collins 2018). The employee protection and the rights of the employees under employment law are designed for balancing the expectations of the job with the required level of fair treatment of the employee who is doing it. These rights of the employees at the workplace come from both first is from their signed contract and also from the legal or statutory rights (Alharbi 2020).
European union law
when it is considered as a significant part of the European Union, the European Union law is having a defined piece of authority that takes place in some domestic law (Alharbi 2020). This simply means that these domestic laws must be performed and accepted in the same way as European law. Most of the European Union laws are introduced into the law of a nation with the help of statutes (Alharbi 2020). The directive of the European Union could be interpreted into domestic law as it is not that specified, and most of the European Union has been influencing the law of employment (Beebeejaun 2018).
The sources of law of employment are:
- Legislation of the nation
- European law, if the nation is a part of the European Union.
- Codes of conduct, regulations, and practices (Beebeejaun 2018).
The main source of the law of employment is statutes which are:
Equality Act 2010
This act helps in defining the legislation regarding equal opportunities, which would set out that all types of employees must receive the same amount of pay scale as well as the same conditions for doing the same level or similar work (Beebeejaun 2018).
The tribunal under the law of employment deals with various claims that have been brought against the employers by their employees.
These are such claims that are typically able to relate with the unfair as well as wrongful dismissals. These also include claims by the employees regarding equal pay or high discrimination, as well as deductions from wage deductions against their employers. If any of the employees have such claims that are aforementioned, then these employees must contact ACAS first for trying to resolve their disputes with their employers through the proceedings of an early conciliation (Okpaluba et al., 2020).
This is also concerned with the factsheet, which has been examining the very first steps, which are at the beginning of the claim as well as the response of some of the employers. This is also considered towards the process of hearing. The tribunals under the law of employment have also been including various other types of tribunal hearing different preparation, procedure, and outcomes (Okpaluba et al., 2020).
The factsheet is also looking for different ways that are an alternative way of settling the claims against the employers, and there were various key features of the agreement regarding the process of settlements. The objective is that during those times when there was a restriction in rules regarding making some physical attendance at the venue of an Employment Tribunal that is in England and Wales (Shi et al., 2018). It would be considered as an exception, and only where they have been needed at their level of interests of justice. There could also be various forms of hybrid hearings where some of the witnesses, as well as parties, have an option that they could attend by video conferencing. The entire tribunal system is likely to be changed permanently because of these changes. There can also be hybrid hearings where some parties or witnesses attend by video link (Shi et al., 2018).
There are high chances that the entire system of the tribunal system can be changed permanently like there shall be remote hearings that could take place at home and would be able to present some new challenges for the judges as well as the employers and numbers of employee also their representatives. It would also represent some participants who might struggle with the issue of technology at the time of hearing (Shi et al., 2018).
The settlement agreement is typically offered by the employers to their employees when they have been leaving their job. In this case, there are two major scenarios have been taken into observation. One is group scenarios, and the other is the case of individual scenarios (Omidakhsh et al., 2020).
Group Scenarios takes place such as there are huge numbers of people who have been suffered from the process of redundancy as well as the process of dismissal when there is the employer who has been offered such conditions regarding the phase of termination, which is an enhanced way and considered as the voluntary redundancy or the payment (Omidakhsh et al., 2020).
In the case of Individual Scenarios, there are several cases, as there are agreements that have been proposed as an alternative method to the performance of an employee. It would also include the incapability of the employee that occurs due to disciplinary, ill-health, or redundancy process (Omidakhsh et al., 2020).
Suppose an employer takes down the disciplinary procedure regarding discipline of an employee which has been entailing the purpose of money as well as the time of management when the employee of a company is offered some settlement agreement that could be efficient as well as saving of the cost and speedy way for the termination of employment safely (Stouten et al., 2018). However, these agreements based on the terms and conditions regarding settlement could also be used for settling the disputes which are already existing with employees, and in this case, an employee does not leave the company.
After signing the agreement of settling, the employee gives their permission that they are ready for settlement with the claims that are legal and have been already listed in the agreement (Nandi et al., 2018). This procedure of settlement is considered as a standard practice where there is some substantial list of claims, for example claims for discrimination, constructive dismissal, breach of contract, unfair dismissal, under the Equality Act, and also laws and rules under redundancy (Nandi et al., 2018).
According to the governing rules and regulations, there are no specified legal acts that would govern the process of recruitment and selection, but there are various acts that would deal with the relationship based on the employment and that also would have some impact on various issues regarding pre-employment as well (Mauerer 2018). There is a various full list of legislation that would govern these laws on the process of recruitment in the prescribed nation. The most important example here is the Equality Act 2010.
The act of equality of the year 2010 is responsible for guiding the employers where it is illegal for the employers for discriminating against the applicants of a job as well as the workers unlawful for employers because of some characteristics which are protected in nature namely (Mauerer 2018):
- Age of the employee or applicants
- Disability among employee or applicants
- Reassignment of gender among the employee or applicants
- Race of the employee or applicants (Mauerer 2018).
- religion or belief of the employee or applicants
- sex of the employee or applicants
- sexual orientation of the employee or applicants
- civil partnership and marriage of employee or applicants (Mauerer 2018).
- pregnancy and maternity of the employee or applicants.
Discrimination is defined as the unequal and unfair treatment of the employee at the workplace because of the feature that is particular and is protected. These are also considered in terms of recruitment whenever there is some occurrence of a possibility that an employer would be selecting the candidate for some better reason rather than their experiences as well as qualifications (Heymann et al., 2017). It is also very crucial that and must not be discriminating against any of the candidates who were involved in the process of recruitment processes as well as present during the time of subsequent employment. The company as an employer must be actively sought for avoiding discrimination in the phase of recruitment (Heymann et al., 2017).
The contract law is the basis of employment law. The contract of employment is like a legal agreement that exists between two contracting parties, that are the employee and the employer. In this contract of employment, it is the employee as a contracting party who has agreed to work for the employer, and in return, the employer as another contracting party agrees to give adequate pay to the employee (Saltzman et al., 2019).
This can also be termed as the contract of service. If either of both the parties has become responsible for breaching any terms and conditions, then another party of the contract has the right that they could claim their right and the remedies for breaching of the contract. This contract of employment, in terms of contract law, has been responsible for dictating that it would create some legally enforceable contract of employment (Saltzman et al., 2019). Then, there are some elements which are essential to present in the contract of employment are-
- Offer by the offeror.
- Acceptance by the offeree
- The intention of entering into the legal contract is for the creation of legal relations between the contracting parties, that is, between the offeror and offeree (Saltzman et al., 2019).
- The valid consideration
- The certainty of specified terms and conditions in the contract.
The perspective of the employment contract is quite similar to any other valid contract, and therefore the employment contract is also based on an offer, as well as an acceptance, and some valid consideration, the parties must be competent, the matter of contract should be a legal object, and the parties have given their free consent. An employment contract is also considered a bilateral form of the agreement for an agreed period where they could go for exchange of service as well as an adequate remuneration (Cesario et al., 2018).
A legal contract, as well as an employment contract, is responsible for giving certain rights as well as obligations to both the employee as well as an employer.
The most common example is that it is the right of an employee that they must be paid for the work they have been doing or they have done (Cesario et al., 2018). And the employer of the workplace has the right to provide the instructions which are reasonable for the employee so that they could work at their workplace. These obligations and specified rights are defined as the legal and contractual terms (Cesario et al., 2018).
The employer has the option that they could make any changes or modification to the contract of an employment contract at different circumstances like whenever there has been something in the terms and the conditions of the contract which would significantly allow the respective change. These are usually those terms and the conditions which are usually known as flexibility clause (Klabbers 2017). It could be possible when the employee agrees to the respective change or the modification or in some of the cases when the representative of an employee agrees to the change and the respective modification that is, for example, a trade union (Klabbers 2017).
The changes that could be brought to the contract of employment and that could occur because of some changes that are either brought by the government in the respective law or by an agreement between the employee and the employers (Klabbers 2017). Under the law of contract, neither the employees nor his employer has the option that they could make a unilateral decision regarding various modifications to change the respective contract, and both the employer as well as an employee give their consent to any modifications in its terms (Klabbers 2017).
There are no specific terms and conditions for bringing a change, either the whole or a part of the legal contract. As long as both contracting parties are present in the agreement, the procedure is easy to take off (Brown 2018). And being in the case of minor changes, the parties also have an option to handwrite them with their mutual consent and will also include them in the case of some original document. They could either sign or being included after changes that are handwritten (Brown 2018).
Redundancy is the situation when there is a disappearance of a job. Here the employer has used an objective as well as fair means of selecting the roles of the job so that they could make it redundant and tell the employee about this (Fryer 2018). The employee also can make a normal appeal that if there are any unfair means used by the employer. The major legal requirements under the law of redundancy are-
- A notice period should be served by the employer to the employee being redundant. It specifies the period that when the employee would be made redundant and what would be the last working day of the employee.
- According to the law of redundancy, the employee is entitled to a minimum notice period of twelve weeks if the employee has been working for around twelve years or more (Fryer 2018).
- At least a notice of one-week period must be given if the employee has been employed between the period of one month and two years.
- If the employer doesn’t want to give the notice period to the employee, then they have an option that they could offer the company a lump sum amount which is termed as pay instead of the notice, which means giving a pay instead of notice (Fryer 2018).
- If your employer has not legally followed the procedure while selecting the employee for redundancy, they might sometimes ask the employee for signing an agreement in which it would be stated that the employee would not go to the tribunal of the employment law often in return for huge an extra amount of the payment to the redundant employee. This is termed as a compromise agreement between the employer as well as an employee (Fryer 2018).
The term transfer of the business is referred to as the case where the business or some part of the business is transferred from one employer to another employer. This could also include the condition of the mergers where two of the companies are shut down and combine to form a new company or business. There will be a change in the identity of the employer, which is required to be protected under TUPE law during the case of transfer of the business (Heilman et al., 2018). The regulations under TUPE law help in preserving the contractual terms and the conditions of the employees when some undertaking or the business or either some part of anyone are being transferred to some new employer (García 2020).
Any provision under any regulations is void, whether it is a contract of employment or not, because either it would be responsible for excluding various of the legal rights or might limit the same that have been granted under these regulations. The law of TUPE can be defined as the transfer of undertakings and the protection of employment regulations (García 2020). The main purpose or the objective of TUPE regulations are protecting the employees when in the case the business in which they have been working as an employee has changed the owners, and as its effect, it would move the employees or any other significant liabilities of the business which were in association with the old owner or employer to a new employer with the help of operation of law (García 2020).
The statutory rights of the employees will include-
- A statement of employment must be written within two months of beginning an employment (Blackman et al., 2020).
- The payment of the employees either at or more than the national minimum wages which are prescribed. This is currently 8.21 euros per hour for the workers aged 25 and more than twenty-five years old. The national minimum wage is 7.70 euros per hour for twenty-one and twenty-four years old 6.15 euros per hour who are eighteen to twenty-one years old (Blackman et al., 2020).
- Paid sick leave, maternity leave, paternity leave or adoption leave, and holidays are also statutory rights of the employees.
- Within two months of the beginning of the job, the employee is entitled to receive a written statement which must clearly state the details of basic level, and there are main terms and conditions for the terms of the employment (Verniers et al., 2018).
- These would also include the title of the job of an employee, with the expected hours of work, as well as the monthly wages and paid holiday and sick leave entitlement.
- There also should be details of any pension scheme which are applicable, together with the minimum notice period. This would also include the disciplinary procedure and policies necessary for reporting any grievance (Blackman et al., 2020).
- The employee is entitled to receive the payslip, which is itemised that would provide a detailed breakdown of the pay as well as deductions.
- The employer must not make some deductions that are not legal from the wages (Engstrom 2018).
- The employee must not be discriminated against under the regulations of discrimination law in the workplace.
- This applies to all the forms of discrimination that include age, sex, disability, race, religious beliefs, and sexual orientation (Engstrom 2018).
- There are safety laws as well as healthy laws, and the employees have a right towards the breaks that are weekly and daily breaks.
- This would also include getting a daily rest period of a minimum of 20 minutes, and if the working day gets increased by six hours, then at least one full day off must be given every week.
- The employers are also responsible for having health and safety laws so that they could have some statutory duty through which they could take care of the health as well as safety of their employees (Salas Zuñiga 2019).
- This could be done by providing them such an environment that is clean to work in, as well as there should be a piece of equipment involved in first aid, as well as protective clothing, washing facilities, and drinking water and then ensuring all of the machinery must be safe.
- The employee could not be forced to work for more than an average of forty-eight hours a week unless there is an agreement between the employee and the employer (Salas Zuñiga 2019).
- The employee must have the right that the employer could pay some certain amount of paid holiday each year.
- Women are entitled of taking time off for some reasonable care, and that could take around fifty-two weeks that have statutory maternity leave (Salas Zuñiga 2019).
The law regarding equal pay is responsible for regulating that an employer is liable to provide the same salary to all the employees who have been doing the same work. The law prescribes that it is the responsibility of the employers that they must not to discriminate among their employees based on their gender or sex. The employees have a right to receive an equal amount of pay for equal work (Ebrahim 2017). This is a law that all men and women as employees must get equal pay for doing equal work. Here the equal work means work that has equal pay, which is very much similar to the work of equal value. This means someone would not get a lesser salary or wages when are compared with another employee who is doing some work for a similar employer (Ebrahim 2017).
The maternity as well as the paternity leave, which also includes the adoption leave, is that kind of leave which are paid and that an employee is entitled to get. These are specified leave which is given by the employer to their employee, either man or women, for taking proper care of their newborn child or recently adopted child. There is a different period of various leaves, and that is different in some different countries (Williams et al., 2017).
It would generally include both maternity leave as well as maternity pay, and that must be legally enforceable (O'Loughlin et al., 2017). It would also include statutory maternity as well as rights of adoption and paternity in the country like the United Kingdoms before as well as after adoption or birth. All mothers, as well as fathers, partners, and the parents who have been adopting and giving birth, are entitled to paternity leave as well as maternity or adoption leave as well as pay and shared leave of parents (Williams et al., 2017). These leave are compulsory leave, as well as statutory leave regarding maternity and shared left parental. Here the employee who is getting paid leave must be the biological father of the baby who is being born or being adopted or the partner of the mother (Williams et al., 2017).
The main requirement of the law about the health and safety laws are on the employers is for carrying out assessments of the risk as well as the examinations that are vigilant of what could be able to cause harm for the people who have been working in the workplace. The employer must keep assessing that whether it is responsible for taking enough precautions for preventing injury as well as the damages to the employees (Heyes et al., 2017). The Management of Health and Safety at Work Regulations 1999 act would require the employers to consider the aforementioned rules and regulations for making reasonable arrangements so that they could implement more safety and health measures which are necessary. They also could appoint some more competent individuals and then could make proper arrangements for appropriate for proper training as well as the information (Heyes et al., 2017).
The Health and Safety at Work Act 1974 is also an act that states that there are employers who are responsible for making sure that all the employees must be safer at the workplace and are protected from such dangers that are possible to the health of the employees during the employment (Heyes et al., 2017).
Along with the expressed terms in the contract of employment, there are some implied terms stated under the contract of employment. Some of the implied terms under the contract of the employment are (Suddaby et al., 2017)-
It is the duty of maintaining confidence as well as trust by both contracting parties under the contract of employment. And if there is no mutual trust and confidence, then it can be considered as constructively dismissed (Payne 2018).
Under Article number 20 of the universal declaration of human rights of the year 1948, the freedom of association is defined. Here the freedom of association is responsible that have been defining that it is the right of everyone and, in simple words, that everyone has the right to freedom of peaceful negotiation as well as an assembly and that no one might be compelled to belong to that particular association (Payne 2018).
Article number 11 of the universal declaration of human rights of the year 1948it also states about the freedom of assembly and association that it is the right of everyone to freedom of peaceful assembly as well as to freedom of association with others. This will also include the right to form and also for joining the trade unions for the protection of their interests (Reynolds 2020).
For proving that whether the case of unfair dismissal was constructive, it is an obligation of an0 employee who has to prove or to demonstrate that the employer is the breaching party and has breached the terms and the conditions of the contract of employment. This is considered a fundamental breach of contract (Yella NA). The employer is responsible for terminating the contract of the employment, and in its response, the employee has not delayed resigning. The fundamental reason for the law of unfair dismissal is that it is the right of the employees to get fair treatment. And while making a claim regarding the same, the employee is required to explain that they have been dismissed (Lewis 2019). It is for successfully defending the claim, as well as the employer is required to show that this dismissal was fair because he has some specified reason and that reason was handled by the employer properly (Taylor 2018).
The right to be accompanied is considered where it as defined either by law or by an employee or some worker who could bring some relevant individual who can be termed as a companion to the meeting held for grievances, especially when that grievance meeting is about some contractual or some legal issue (Pearce 2018). This is called a right of accompanying or a right to be accompanied. The person can choose their companion from one of the following which is prescribed as below are-
- The person who is accompanied by the aggrieved employee must be an official who has been employed by a trade union.
- Most employers had already allowed the employee that he has the right to have a friend colleague (Freedland et al., 2017). They could be accompanied by the employee as a witness at a grievance hearing or the disciplinary hearing (Freedland et al., 2017).
It is therefore also necessary that disciplinary as well as grievance procedures are reviewed by the higher official authorities, which would ensure that this is a statutory right that is available to the worker. A disciplinary procedure can be used by an employer for addressing the conduct of an employee or the performance of an employee (Lilly Jr 2017). A grievance procedure is a procedure that is used for dealing with the issues of the complaint that is raised by an employee. Employers are allowed to take some reasonable adjustments in the case of disabled employees under the discrimination law (Vas Nunes 2018). This might mean that when someone else is there for respective attendance, for example, someone might support worker or someone who is knowing the disability and its side effects. The employers could, but usually, they do not give allowance to the companions who do not comes within the above-defined categories. For example, some contracts of employment might allow the support of a professional body, or their partner, or spouse or might be some legal representative (Wight 2018).
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