Strengthening the Case for Extending Statutory Rights - Essay Example

? Law Essay Introduction Atypical work is defined as the form of employment, which is not full time in nature. This form of employment includes part-time, night employment or even telework, which is often done at home (Nienhuser 2005). These are flexible forms of employment, which allow the individual to handle a number of jobs at the same time. One who is working from home can, therefore, manage to take care of a child, and at the same time earn an income. This article will focus on this emerging form of employment, and highlight some of the legal challenges that people who opt to practice this form of employment face. Strengthening the Case for Extending Statutory Rights Generally, the traditional employee is entitled to statutory employment rights. Such rights as right from unfair dismissal and other related jobs are enjoyed by employees who have jobs that last from 9 AM till 5 PM. This means that such an employee has a right to be informed in advance of the intention by the employer to lay him/her off. There are a lot of case laws that has been affected to protect the rights of the traditional employee. An example, such a case, is the case of Commissioners of Inland Revenue v Ainsworth [2005] IRLR 465. In this case, the matter was of the enforceability of the right to holiday pay (Moffatt 2011). There are all forms of material concerning the protection of the rights of the traditional employee. The new or emerging form of employment has also necessitated an urgent need to protect the rights of the atypical employee. One of the contentious matters that are encountered in this stage is the form of protection that an atypical employee is afforded. In England, more than 25% of the labour force constitutes part-time employees (Vettori 2007). Vettori 2007 emphasizes on the number of the atypical employees globally has shot up to a very large size warranting the need to revise the title ‘atypical’ that is normally assigned to them. Currently, the atypical employees do not enjoy many rights (Vettori 2007). This means that employers have the power to hire, and fire them at will since they do not have signed contracts to secure tenure at the place of employment. The employer who utilises these atypical labourers has the advantage of having a labour force that is highly vulnerable, therefore, easy to manipulate in his/her favour. The employer in this case is able to escape many obligations in the form of collective bargaining or even legislation. This sorry state of affairs thus brings up the urgency to grant these employees statutory rights. In some countries like England, there have been steps towards the granting of a level of protection to the atypical employees. One way of doing this has been through the passing of the Employment Relations Act 1999 (Galbraith et al 2011). This law grants authority to some statutory organs to ensure that the statutory rights are extended to other forms of employment such as atypical employees. This aims to ensure that the employees are given a sort of protection by the law. An example of this in the application is the case of Byrne Brothers (Formwork) Limited v Baird. In the above case, the employees who were level D subcontractors-only were able to claim paid leave for the duration of time that they were laid off. This was during the period of Christmas and New Year’s celebrations. The basis of their victory was because the Work Time Regulations 1998 applied to all employees. This sort of egalitarian law had the effect of placing all the employees in the same rights level. This thus ensured that employees were protected within this duration, and it was not easy to lay them off. Currently, the atypical employment sector is growing steadily. This sector, which includes the temporary employees, part-time employees, self employees, and subcontracted employee has managed to grow. Some of the reasons for this growth are attributed to the absolute growth in the sectors or industries that rely in this form of labour such as retail chains among others (Ducatel et al 2000). The most affected are the women who tend to be more employed within these businesses. On the other hand, growth in the ICT sector has been a reason for expansion in the atypical employment sector. Essentially, fact that the ICT sector is a major source of employment especially for those working from their homes, leading to great boost to the sector (Ducatel et al 2000). Reasons for Resistance to Granting Statutory Rights to Atypical Employees The employers within this sector would be very unwilling to grant the atypical workers statutory rights for various reasons. One of these is the ability or flexibility of the employer to shift the risk of a poor performance in the business to the employees instead of shouldering this risk (Davis 2004). This means that the employer is in a position to take out the excess costs on the employees rather than take them up. At the moment, there are a lot of businesses that are undergoing hardships due to the tough economic times. At this point, the most risky individuals in the industry are the atypical employees. Typical workers will have a form of secure tenure. They are also assured of payment at the end of the month regardless of whether the business performs well or not. The employer in this case has assumed the risks of this happening, and gone on to hire people on a permanent basis (Davis 2004). On the other hand, the casual employee who is an atypical employee has no such benefit open to them. In their case, the employer will only bring them on board if, and when they feel that the business needs them. This means that casual employees will be in demand more during peak times like holiday seasons when there are many shoppers in supermarkets, and other service driven industries. Due to the fact that they are not employed with contracts that guarantee their tenure, they will be laid off by the employer in order to offset some of the business’s operating costs (Davis 2004). At the same time, due to the precarious nature of their employment, the employers are at times known to harass these employees. This happens especially with the notion that, the employees do not have an alternative; they choose to suffer under these harsh terms. The casual employees are also, not in a position to negotiate for better pay. Though this is not the case for all atypical employees as some are hired through trade unions, it is the sad reality for most others. Needless to mention that, in United Kingdom, there has been a seemingly toning down of the government policy of ensuring equality in the employment standards. This has been seen in the moves to limit the scope of several far reaching laws to cover employees only. The government asserts that this aims at ensuring that atypical employment are able to grow adversely. It is the opinion of the government that granting too numerous rights to these forms of jobs is a disincentive to employers to hire on the terms that will be set. This situation further threatens the economy due to the rise in unemployment, and the unwillingness of the targeted population to embrace the various jobs (Taylor and Emir 2012). Arguments for Granting Statutory Rights to Atypical Employees There are many convincing arguments as to the need to deny the atypical employee his/her rights. At the same time, there are those who would further the argument that these employees need these rights as much as a typical employee needs them. Imagine a person who is reporting to work in the morning but is not sure about their employment status. Probably, the previous day he/she saw an announcement that today there will be various workers laid off because business is not doing too well. This employee works in a local retail chain that sell all sorts of home appliances, and food that are used at home. He/she is probably an attendant at the payment counter or even works along the shelves guiding the employees on where to get specific commodities. For the sake of this discourse, this employee will be referred to as Jane (Ferrie 1999). As at present, it is just after Christmas in mid January, so business has been slow. This hypothetical look at the state of affairs is not just a fictional picture but reflects the lives of many people working all over the world. According to Davis 2004, new institutional economists are questioning the wisdom of keeping Jane in her present precarious position. According to them, Jane is not as productive as she should be. They argue that Jane would be better incentivised if she was assured of a level of respect by the employer, as well as, the assurance that her job is secure. Ordinarily in her present condition, Jane is likely to be rude to customers when they come to the counter or at the shelves. On the other hand, if she knew that she will not be fired and that her employer will consider her maternity leave, or reasonable working hours, this situation can be replicated all over the job market (Davis 2004). Granting the atypical employees statutory does not necessarily mean that the employees will be granted all the same rights as typical employees. It is not possible, for example, to grant permanency to these employees. However, allowing them reasonable rights should be the objective of the employer. According to Muntigl et al 2000, in the European Union, for instance, there is a drive to revisit the proposals for European Directives on atypical work. Currently, the unskilled labour in Europe has proven to be very expensive. Muntigl et al 2000, points out that, the reduction of labour costs without interfering with the net disposable income would both preserve, and create jobs. The European Union has established a policy of equalizing the rights of both the atypical worker, and those of the typical worker. Though this policy has not fully materialized, it has none the less been put in motion, and what remains is to see its final outcome. In the United Kingdom, for example, the legislation passed refers to workers. The term ‘worker’ is much broader than the term ‘employee’. This means that, in the United Kingdom, several legislations have a much more sweeping application than ordinary. In essence, the Secretary of State has authority to spread protection of the laws to even those workers who are not entirely permanent in their employment. Apart from the Employment Relations Act of 1999 whose role has already been discussed above, there are other laws that the Secretary of State can derive powers from. They include Minimum Wage Law, and the Working Time Regulations (Cornelius 2001). What all the above laws share in common is their ability to shield the workers within the United Kingdom from unnecessary exploitation by their employers. Aside from legislation, there has been emergence of the role of the courts of law in guarding the rights of the atypical employees. In the case of Brown V Chief Adjudication Officer [1997], the question was on the eligibility of an employee to Statutory Sick Pay (SSP). In this case, the employee had served a series of one-day contracts, which when summed up amounted to three months worth of work. In this matter, the court held that the employee would be considered employed terminable on notice, and was, therefore, eligible to receive the SSP. This move by the courts, as well as, the legislature has pointed towards the drive of recognising the rights of the atypical employees. This means that there is a desire to see the employees are protected against the attempts by employers to take them for granted. While there are arguments that granting statutory rights to employees tends to threaten the economy in various ways, the truth is that there is a need to revisit the terms of employment under atypical employment (Cornelius 2001). This is mainly because the state of affairs in terms of employment is usually skewed on the side of the employee. In light with this, the employer has a right, and as per the government view points a right to determine the way to hire the people under atypical labour. All indications are that there are attempts to better the lot of employees who are considered to be atypical. One such indication is seen in a 1994 discussion paper, which was then followed up by a 1997 agreement, which was accented to by the social partners. This agreement gave part time workers equal rights in the work place as those enjoyed by employees on a full time basis (Roney 2000). This translated to rights like occupational pension schemes, and access to vocational training, pay for shift work, sick leave schemes, paid holiday leave among other schemes (Roney 2000). This is an affirmation of the rights of the employees regardless of their status that they also deserve some level of consideration. As seen above, granting rights to the atypical employee will motivate him/her to perform better. In the case of people who are self employed, the granting of statutory rights will mean that they are empowered effectively safeguard their employment (Muntigl et al 2000). This further translates to this individual being able to create jobs in the market. In the end and contrary to an opinion earlier held, there is growth in the economy which is beneficial to all shareholders. Muntigl et al are of the opinion that pilot projects target these employers in terms of training them to be able to grow their businesses, as well as, reducing the amount of taxation on these businesses is highly beneficial to the economy in the long run (Ferrie 1999). Various options are present at the European Union when it comes to these forms of incentives. There is the proposal to target the underutilised budget allocations to target the job creation market. According to Muntigl et al, the political elite, and the policy makers can ensure that the funds are directed towards empowering the youth, and those that are permanently unemployed. This thus reduces the strain on the budget and ensures a level of growth in the economy. Conclusion As the arguments above have proceeded to indicate, there is more to gain from granting statutory right to atypical employees as opposed to denying them. Additionally, the number of atypical employees has been on the rise, and so are those industries and businesses that use these services. Due to the nature of these jobs, there has been a feeling that they do not warrant a similar level of protection as doe’s typical employment. However, since the job market for permanent employment is highly specialised and limited in capacity, the other employees need to be absorbed somewhere. This means that the government needs to look into the atypical form of employment and plant protection for those employees working under it. Needless to mention, there is an agreement that there is a need to relook at the issue of granting statutory rights even to the atypical employees. This will help those who are atypical employees gain more from their jobs in the current and future employment status. Bibliography: Cornelius, N., 2001. Human Resource Management: A Managerial Perspective. London: Thomson Learning. Davis, A. C. L., 2004. Perspectives on Labour Law. Cambridge: Cambridge University Press. Ducatel, K. et al., 2000. The Information Society in Europe: Work and Life in an Age of Globalization. Oxford: Rowman & Littlefield Publishers, Inc. Ferrie, J. E., 1999. Labour Market Changes and Job Security: A Challenge for Social Welfare and Health Promotion. Copenhagen: World Health Organization. Galbraith, A. et al., 2011. Galbraith’s Building and Land management Law for Students. Oxford: Butterworth-Heinemann. Moffatt, J., 2011. Employment Law. Oxford: Oxford University Press. Muntigl, P. et al., 2000. European Union Discourses on Un/employment: An Interdisciplinary Approach to Employment Policy-Making and Organizational Change. Amsterdam: John Benjamins Publishing Company. Nienhuser W., 2005. Flexible Work: Atypical Work: Precious Work? Mering: Management Revue. Taylor, S and Emir, A., 2012. Employment Law: An Introduction. Oxford: Oxford University Press. Vettori, S., 2007. The Employment Contract and the Changed World of Work. Hampshire: Ashgate Publishing Limited. Read More