Employees Contractual and Statutory Rights - Case Study Example

Employment and Health and Safety Law: Case Study Table of Contents Employees Contractual and Sta y Rights 3 Paternity leave 4 Working time and opt out 5 Terminating Employment Contract 7 Advice to Abel 7 Advice to Bob 8 Advice to Carol 9 Advice to Deny 10 Conclusion 11 Bibliography 13 Employees Contractual and Statutory Rights Employees are bound by contractual and statutory obligations. The terms of contract cannot deny the employee of their rights established by the legislation, but an employee can enjoy more rights provided in the employment agreement even though they are not part of statutory rights (Walker, 2013). Statutory rights are established by the act of parliament while the contractual rights are specified by the employer and the employee in the employment contract (Turner, 2013). It is the statutory right for the workers to be provided with written declaration of terms, detailed pay slip, not have illegal deductions made from their earnings, sets, minimum wage rate, equal treatment, fair dismissal, paid holidays, join trade unions, and so on (Pitt, 2011). Therefore, the relationship between employers and employees should not contradict statutory requirements. Right to statement of terms and conditions Under Employment Rights Act s1 1996 the employer is obliged to give the employees a written statement of terms and conditions within eight weeks since the begging of the employment. The statement should disclose all the agreed terms of work between the employer and the employees (Barnard, 2006). The statement provides details concerning the employer and the employee, job description, terms regarding holidays, information about previous employments, date the work began, pay rate and pay interval, terms of leave, pension , notice working hours, disciplinary procedure, any collective agreement, etc. (Pitt, 2011). In case the employers fail to give the employees a statement of terms and conditions, the employee can appeal to the employment tribunal for the same (Walker, 2013). In this case of Abel, has a right to the statement of terms and conditions from the FDO. He can raise a claim against the FDO to the employment tribunal for the declaration of terms and conditions of employments. Paternity leave The working parents in UK enjoy various statutory benefits among them the paternity leave. Paternity leave is taken for one or two consecutive weeks from the day the child is born or later, but within 56 days after childbirth (Pitt, 2011). The employee can take paternity leave from the actual date of birth but should not extend beyond 56 days. The employees are entitled to a Statutory Paternity Pay of £138.18 a week or 90% of employees’ weekly pay depending on whichever is lower (Walker, 2013). The amount is payable only when the employee is on leave. Before an employee can take paternal leave they must be characterized as employees and must have served the present employer for at least 26 weeks (Walker, 2013). The employee must be on the payroll with a weekly gross earning of at least £111. They should notify the employer of the intended paternity leave and specify the date they want to start the leave but after the child birth (Walker, 2013). The employee must be responsible for the child upbringing and off time taken should be for the purpose of taking care of the child in order to qualify for the leave. Abel is a casual employee working for Fun Day Out Ltd (FDO) and has worked for three years. However, he is engaged between April and October and takes off between November and March. He now wants to take paternity leave in August because he expects his girlfriend to have a baby during that month. However, FDO has told him that he cannot take the paternal leave because he will have plenty of time between November and March. Abel has not satisfied the legal requirement for paternal leave. For example, he has not worked for the required 24 weeks continuously since he began his work in April. Also, the law requires the applicant to notify the employer 15 weeks prior to the anticipated childbirth (Walker, 2013). Therefore, Abel had not met the requirements hence he could not take the leave. Furthermore, the casual workers earn £6 daily or £30 weekly which is below the required £111 (Walker, 2013). Since the casual workers are hired to assist between April and October when the company is habitually busy it is reasonable for FDO to deny Abel paternity leave because they do not qualify for it and on the ground that they have adequate time between November and March during low season. Therefore, Abel cannot raise any claim against FDO or LSRA for denying them paternity leave. Unfair Discrimination The National Minimum Wage Act 1998 sets a minimum wage rate for various categories of workers. The wage rate depends on the age of an individual employee, experience, qualification and the nature of work among other factors. Under Equality Act 2010 the employees performing the similar task and with same qualification and experience they have right to uniform earnings irrespective of gender, race, religion, age, etc. It is a statutory requirement that workers be paid a minimum wage rate (Turner, 2013). Bob has been working for three years and is earning £6.5 while Carol is earning £7.5 per day although she joined the company after Bob. Since they are doing similar jobs and Bob could be more experienced than Carol because he has worked for three years they have right to equal pay. Therefore, Bob can raise a claim of gender discrimination and request for higher pay because he has more experience than Carol and they are carrying out similar tasks. It is the employer duty to disapprove the allegation by providing evidence to support their rationale such as establishing Carol is more qualified than Bob. Working time and opt out The law recognizes workers as the weaker parties in the employment contracts hence their consent, to opt out, must be accompanied by safeguards to ascertain of their free and voluntary consent to relinquish their social rights issued by the directives (Pitt, 2011). The legislations offer rest time to the workers for the employees working continuously for more than six hours. However, the resting time permitted by the law is 20 minutes and is taken only once during the working period. Furthermore, the employee should be given at least 11 hours of rest during the 24 hours of each working day. The normal working hours per day should be 9 hours inclusive of rest time, and the workers should be paid overtime for additional hours taken beyond the normal working hours (Walker, 2013). Workers have a right to a total of 48 working hours per week and 20 minutes rest time each day or 11 complete hours in 24 hours day. In case, he feels that the employer is overworking him beyond the normal working hours of 48 hours weekly provided in the directives he can raise a claim before the court against the employer. According to Working Time Regulations 1998 the total number of weekly hours should not exceed 48 hour but according to the contract agreement Bob should not work for more than 40 hours a week. In the case of Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (2005) C-397/01-403/01, the German Red Cross workers raised a claim against the collective agreement that set the number of weekly working hours as 49 by and cited that such directive was in violation of Working Time Directive. However, the Red Cross argued that the emergency workers were not covered by the directives. However, the European Court of Justice (ECJ) declared that an employer cannot subject workers to 49 hours of work in a week by a collective agreement. In the case of Bob he has a right to decide whether to opt out or not opt out. However, if he decides to work extra hours he should be paid overtime for extra hours worked (Walker, 2013). Terminating Employment Contract The parliament enacted legislations to define the extent of discussions between employees and their employers in order to protect health and safety of the workers. All companies are expected to comply with this directive (Walker, 2013). The European Union’s (EU) Working Time Directive, 2003/88/EC, offers the EU workers to the minimum number of holidays and rest breaks they can enjoy every year. Under s94 of Employment Rights Act, 1996 employees have right not to be unfairly dismissed. According to the Act, an employer is said to have dismissed the employee unfairly in case they terminate the employment contract without justified reason or where the dismissal is contrary to particular legislation. S86 of the Act protects the employee against dismissal without notice. For an employee who has worked for one month and two years should be given at least a one week notice of dismissal or otherwise they could raise a claim against the employer for unfair dismissal unless the employee were engaged in gross misconduct that warrants outright dismissal without notice (Pitt, 2011). An employee can be dismissed for various reasons including being redundant, unable to perform their jobs, in case they are retiring, illegal action, etc. (Barnard, 2006). Apart from having fair reason the employer should follow the right procedure in order to justify the dismissal. Advice to Abel Abel had worked for three years as a casual worker. However, according to Pitt (2011), an employee should be given a notice of dismissal after working continuously for two years. According to the contract agreement, the workers are not entitled to notice during the probationary period (Barnard, 2006). Since Abel was providing the service to the FDO between April and October and took the break between November and March, he was not entitled to dismissal notice. According to Turner (2013), a worker is entitled to a block of 20 minutes for a break whenever he or she has to work for more than six hours continuously. However, the employer or supervisor has the duty to decide when the employee can take the break although it has to be during the working hours. Abel had worked from 8.00 am until 2.30pm without a lunch break. However, he decided to excuse himself after shouted at the team leader instead of waiting for his authorization. Following the accident that occurred, Abel believes that he had a right to lunch break. Although an employer does not care how or where one spends the break time. However, it is upon the employer to decide when the employee can take the break in order to avoid causing unnecessary interference to the work. Advice to Bob Bob was placed with FDO by LSRA and has been working for the last two years continuously. He takes command from FDO, and he reports to their human resource and arranges for holidays and breaks. Bob was working at his usual place of work before he was moved by Denny from monitoring the queue to helping to help customers off the ride. The accident occurred while Bob was performing his new role. He claims that he had no decent training on how to operate the equipment safely, but he had never experienced problem before although he thinks the customer was a bit clumsy and panicked. According to Pitt (2011), an employee who has worked continuously for two years can raise a claim against the employer on the basis of unfair dismissal if terminated without notice. The employer had dismissed him because of the accident that had occurred while at work. However, Bob was aware of his incompetence to assist the clients off the ride yet he accepted to offer them assistance. Therefore, he acted irrationally because he should not have accepted to do something he was not trained to do because of the risk involved. Considering the circumstance in which the Bob was terminated the employer acted unfairly because he did not give him the one week’s notice as required under S86 Employment Rights Act 1996. According to the case in Polkey v Dayton Service [1988] AC 344 HL, the employer can only dismiss the employee based on the information they have, and that can lead to employee termination. Bob has a right to request the employer to serve him with written reason for dismissal. Advice to Carol According to the case in Corps of Commissionaires Management Ltd. v Hughes [2009] ICR 345, the workers involved in more than six working hours the employees have a right to 20 minutes breaks during which they can take tea or meals. The employer has right to decide when the employer can take the break so long as it is within the working time. According to Turner (2013), an employee is entitled to adequate toilet facilities at the place of work. Therefore, employers should ensure workers do not spend more than a necessary time queuing in the toilet. Also, where possible employers should provide separate loos for male and male workers and all other facilities (Turner, 2013). However, the law does not specify when the workers can use the loos facilities or how much time they should spend in the toilet. According to Pitt (2011), workers should spend reasonable time in a toilet and avoid unnecessary delays that may cause disruption of the work. Carol had been given the usual 20 minutes break by her supervisor, but she took longer than usual because she had to go to the toilet. She also claims that the delay was caused by long queues in the toilet. During her absence, the accident occurred because the workers were insufficient to handle operations efficiently. She has the right to be informed of her dismissal because it was not her fault that the toilet facilities were inadequate and considering that she could not work efficiently without relieving herself, and she did not have control of the time she could take in queue she deserved an explanation of the cause for dismissal. Furthermore, the agreement require the workers to be engaged for forty hours a week which could be taken as agreed with the management thus FDO could deduct additional time taken during break and request the client to compensate for the wasted time. Therefore, Carol can raise the claim of unfair dismissal against FDO because she was on break at the time of the accident and has right to use of toilet. She can argue that her employer did not follow the right procedure for dismissal. Advice to Deny Deny was the team leader at the workplace during the time of the accident. He was aware that the work could not be performed by less than three workers. Although it was in order for Denny to grant Carol a twenty minutes break. On the other hand, Bob took break without the consent of the supervisor. Although he shouted at Denny before taking break Denny did not act in a proper manner because he should have explained to Bob that Carol had not resumed from her break, and the work could not continue without three workers. That would clear the claim raised by Bob, who asserted that he thought Carol had resumed from her break. It was not right for Denny to keep Bob and other workers, working without lunch break until 2.30 pm unless it was unavoidable. Therefore, it was Denny’s fault that the two workers had taken break simultaneously thus leaving the insufficient workers to attend the workers. Furthermore, since Denny was aware of the risk involved in handling the clients with insufficient workers, he was at fault to allow the operations with only two workers. It would be suitable for him to stop all activities and wait for other employees to resume the work from the break. Also, it was wrong for him to shift Abel from lining up the clients to assisting them off the ride since he was aware that Abe lacked training in that area. He should have let Abel to continue helping the clients make queue until such a time when Abel would be given training to handle work in other areas. Finally, Denny had an option to stop the operations temporarily until when other workers would resume the work. Although he claims that workers had gotten into trouble for stopping the ride briefly he was aware of the risk involved in continuing with the ride without sufficient workers. Therefore, Denny acted irrationally by allowing the ride to continue with fewer employees than necessary hence exposing workers to unnecessary risk. The contract agreement signed between workers and FDO provides the workers the right to one-month notice after the probation period. However, Denny may not succeed in raising claim against FDO or LSRA on the ground for unfair dismissal because he was involved in gross misconducts. His conducts had severe implications on the business performance and its public image. Conclusion The relationship between employees and he employer depends is based on statutory and contractual provisions. An employee can raise a claim against the employer for unfair dismissal in a case of job termination without notice under Employment Rights Act 1996. However, the employer is justified to terminate an employee without a notification in case the employee was engaged in fundamental breach of conduct as stated in the case of Pepper v Webb [1969] 1 WLR 514 CA. The employer must have justifiable reason for dismissing an employee and issue them with dismissal notice in order for them to have acted fairly. The agreement signed between the employer, and the employee dictates the working relationship between the employer and the employees. Bibliography Barnard C. (2006). EC Employment Law, (3rd Ed.). Oxford University Press. Pp. 1-798 Corps of Commissionaires Management Ltd. v Hughes [2009] ICR 345 Employment Rights Act s1 1996 The European Union’s (EU) Working Time Directive, 2003/88/ECPepper v Webb [1969] 1 WLR 514 CA. Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (2005) C-397/01-403/01 Pitt G. (2011). Employment Law, (8th Ed.). Sweet & Maxwell, Pp. 1-503. National Minimum Wage Act 1998 Polkey v Dayton Service [1988] AC 344 HL Walker, S. (2013). Health and Safety Law and Practice. Straightforward co Ltd. Pp. 1-156 Turner, C. (2013). Unlocking Employment Law. Routledge. Pp. 1-640. Read More