The Success of the Employment Law in Resolving Individual Disputes - Essay Example

Employment Law R.Preeti 10/9/2007 A workplace is not only a common roof under which people work and implement productivity in order to fulfil certain tasks, but also serves as a ground for employer-employee interaction and also amongst employees. In this era of competition and increasing hours of work and pressing deadlines, disputes and dissatisfaction are common occurrences. Such disputes show a greater tendency to crop up between employers and their employees, rather than within the employee community to a large extent. This paper on Employment Law attempts to analyse the aspect of Disputes and the success of the Employment Law in resolving Individual Disputes, more than Collective Disputes, in organisations. Firstly, my paper endeavours to explain the concept of dispute between employer and employee; and the reasons that cause them. Next, the intervention of Employment Law and the existence of the Employment Contract is explained, in the context of the rights and duties prescribed to the employers and employees. Further, moving on to Collective Dispute and Bargaining, a clear distinction is brought about between the concept and that of Individual Dispute and Bargaining, with reference to the Employment Law. The paper attempts to point out that the Employment Law has supported Individual Bargaining. A final conclusion supporting the fact that the Law succeeds in supporting the resolution of Individual Disputes and Bargaining to a greater degree, than that of Collective Bargaining. I would like to acknowledge the efforts of my tutor and fellow-students, who have helped me better myself each time; during the course period. Conflicts and the Causes It is but natural that when numerous individuals come together with different sets of values and temperaments. More importantly, it occurs between employers and employees due to varied reasons, such as difference in viewpoints and opinions, expectations, terms and conditions; and the output generated. Here is an analyses of the varied causes that could lead to the employer-employee dispute and conflict. Poor Communication: One of the prime causes for the disputes that arise between employers and employees, is poor communication. When one or both the parties are not explicit or detailed and clear in their expression of a certain idea or expectation, it perhaps does not reach out to the other party. Thus, when a task or a certain order is not completed as desired due to miscommunication, it can cause disputes. For instance, when the company policy is not spelled out in detail and when the employee goes against the provisions, it can cause quite a ruckus within the company. This is also seen in the case of rather vague and ambiguous clauses in the Employment Contract, which is explained later in the paper. This can cause good amount of chaos. Resources: The resources provided in an organisation could not be up to the expectations, which could be another cause for a dispute. The scarcity or lack of resources and the prevalence of improper working conditions could trigger off a dispute. For instance, long working hours and going beyond the maximum of 48 hours per week, without optimum payment could be an the cause for an impending dispute. Differing Interests and Values: Another potent cause for the employer-employee dispute could be the differences in perception or comprehension; due to a variation in the vision of the final outcome or the interest vested by both parties in the organisation. While employers, most often try to derive high amount of productivity from their employees, for the growth of their organisation, employees show interest in making progress in their individual careers, placing this before the progress of the company. Job Roles: When the definition of job roles and work functions gets blurred and there is no exact identification of the same, that the employees can envisage and work upon, it leads to discontentment and the job environment becomes ambiguous. Therefore, a unchallenging job environment, without scope for improvement can be a cause for resentment and further conditions of disputes. When a challenging and better job offer comes along, an employee could breach the Employment Contract and the contract period stipulated; which can lead to a dispute. Poor Management: An organisation with a weak and poor management system, which does not provide the much needed directions for the employees to tread on, can be of immense inconvenience. The chaos builds up and creates confusion with regards to the job, common goals, the plan of action and the like. It also fails to bring about a consensus within the organisation on the stance and the goals to the achieved, besides the manner of attaining them. This can be causes for the dispute. Inadequate Training: When the management shows no interest in training the human resource available in the organisation, for the benefit of collective and individual growth; it sows the seed for a dissatisfied workforce. It also causes the improper functioning of the workplace and leads to a dip in the overall productivity, besides increasing the chances for an employer-employee dispute. Harassment: Harassment on the basis of gender, race or religion and other issues can be an imperative cause for dispute between the management and workforce. The most important aspect that any individual looks out for, is respect and an upkeep of self-dignity. Thus, these are the various causes for the Employer-Employee Dispute, which can lead to a rift and create numerous problems. Employment Law and Contract Employment Law is the law that has been outlined for employers and employees, alike, to pave way for a proper functioning of organisations and workplaces, without any discrimination or unlawful running over rights outlines. The Employment Law uses the Employment Contract, which is an agreement between employers and employees, as a vital tool to bring about legislation in organisations. An Employment Contract is an agreement, verbal or written, individual or collective, that spells out the terms and conditions of work, the payment procedures and covers other important aspects of workplace workforce functioning. A 'contract of employment' is defined by the Employment Rights Act of 1996 as a contract of service or apprenticeship, whether express (that is, actually stated) or implied, and (if it is expressed) whether oral or in writing. (www.cipd.co.uk) The contract, in its written form, must contain the statutes mentioned in the Employment Rights Act of 1996, with additional clauses if desired by the parties. The terms and conditions of the contract must cover minimal statutes like the Right to Paid Holidays, the Right to Rest over Weekend, Right to the Stipulated Minimum Wage, the Right to receive a Notice of Termination, and the like. Since the Law is like any other contract form, there exists a contract law, that says, there need to be a minimum of three requisites for the contract. Firstly, there should be a clear proposal form the side of the employer, to employ the potential employee. Secondly, the employee needs to accept the offer made by the employer and thirdly, the employee must offer services for a compensation made by the employer. Section 1-7B of the Employment Rights Act 1996, as amended by the Employment Act 2002, sets out the essential elements that must be detailed in the written statement of particulars of employment. The statement can be divided into two parts - the first part must be included in one document, the other information can be delivered in installments. Items to be included in the main document: names of the employer and employee date when employment began date on which the employee's continuous employment began scale or rate of remuneration or the method of calculating the remuneration intervals at which remuneration is paid, that is, weekly, monthly or other specified intervals terms and conditions relating to hours of work, including any terms and conditions relating to normal working hours terms and conditions relating to entitlement to holidays, including public holidays and holiday pay, in such a manner as to allow them to be precisely calculated job title or a brief description of the type of work the employee is employed to do place of work or an indication that an employee is required or permitted to work at various locations. (www.cipd.co.uk) Thus, the employment contract is an important document that can be referred to, in case of disputes, conflicts and other problems that arise between employers and employees, on a future date. Collective Disputes and Bargaining Collective Disputes refer to the disputes that are brought about between the employers and the trade unions, which act as a consolidated group of employees. In other words, one of the main criterion of Collective Bargaining is that it involves two parties---the employer and a trade union, that acts as the representative and membership body of the employees. They were prevalent in the 1960s and industrial functioning was characterised by these collective disputes. During those years, not much importance was attached to individual voicing of opinions, amongst employees; as organisations held a unitarist view. They preferred minimal conflicts and did not give much preference or approve of the idea of negotiating with trade unions, on issues like pay, working conditions, work hours, etc. The primary, and most fundamental notion is Alan Fox's frames of reference, which reflect upon the behavior of employers and employees and the part of labour institutions. From one perspective, stake holding can guarantee an improved variant of pluralism which sustained the authority of institutions. From a different point of view, it can be interpreted in terms of employee involvement as one more unitarist stratagem to compromise the self determination of British labour institutions. Although stake holding appears to be established in pluralism it is also in agreement with the feeling of discontent for industrial dispute (Provis, 1996). However, it was necessary to form groups and raise voices against any injustice meted out to employees, since individually it couldn't be done. During the time, Employment Law statutes like the National Minimum Wage were not existent and law did not support individual voicing of opinion, as well; which was another reason for the emergence and high participation of workers' unions and trade unions. Collective Bargaining refers to the process of negotiations that take place when a collective dispute arises and therefore, it is existent between the employer and the trade union, as the representative consolidated group of the employees and labour force. It is characterised by negotiations, talks and participative meetings, with a view of coming to a mutual decision through agreement from both parties. It is a methodology to put forth the opinions, expectations and grievances of the employees and rationally get the employers to cater to their needs, through talks, strikes, negotiations and the like. John Gennard and Graham Judge opine that Collective Bargaining is a problem-solving mechanism between the employer and trade union. It is a mechanism to bring about a reconciliation of interests of the parties involved---the employer and the trade union. It also serves a social purpose---it integrates employees and the labour force and helps bring about a consensus and a consolidated view from their side, increasing cooperation and coordination among employees. Therefore, the mechanism serves a dual purpose. It creates an integrated workforce, while also getting the employers to listen to their opinions. A research undertaken by the Donovan Commission in 1965, published in 1968 provided a comprehensive picture of the industrial relations practice. It defended the principle of voluntarism and the tradition of legal non-intervention although they conceded the need for legislative protection of certain individual rights, particularly against unfair dismissal. It is in this context that the unions existed, to voice the common opinion of employees; since legal measures in this context were not supported. The relationship between organisations and unions, between the unions and the government was strained and the period during the 1970s to the mid 1980s was characterised by industrial unrest. In the year 1979, when Margaret Thatcher and the Conservatives were voted into power, the unions suffered sever blows, as the government tried to force the Trade Union Congress, an employee representative body, out of the national industrial life. Consistently, trade unions were weakened and by mid 1980s, they were deprived of their once strong position. Thus, collective bargaining was on a wane ever since. Thus, through these facts and elucidation of the very essence of what Collective Bargaining is, one can come to the conclusion that the mechanism was not a very legal one, as not many legislations were passed or were existent in support of Collective Bargaining. The unions brought about desired changes through collective negotiations and coming to consensus with the employers; but there existed no law that outlined or protected certain employee demands or rights. However, it provided a great start and an impetus towards the expression of the employees' opinion. Individual Disputes and Bargaining With the Labour Party coming into power in the late 1990s, Individualism had received greater impetus on the industrial front. Employees were no longer mine labourers, but started working in workplaces, supermarkets and call centres. Today, with organisations becoming more pluralist in their recruitment, conflicts are bound to occur and therefore, the outlook has changed. Employers recognise the prevalence of conflict and are more accommodating towards change and the fact that conflict is inevitable and needs to be managed, not pressed down with an iron hand. Today, conflicts are no longer addressed extensively through consolidated trade unions, where numerous employees get together and voice a common opinion. The situation has given rise to individualism. Individual employees can voice their grievances openly, since the Law has provided for legislations to support their cause---their right to fight back against unjust practices or conditions of work. With the support of the law, the individual employee can go on a point out the flawed conditions and terms of work, he has been subject to. This was previously absent, since there existed no such legislations to support the cause of the employers or employees. In fact, it is not only the employees, but also the employers who have benefitted from these legislations, as they can dismiss an employee who breaches the employment contract, for instance, without fear of a huge union strike in the offing! In an effort to minimise the existence and growth of conflicts, organisations are looking to what is known as Individual Bargaining, which is a reconciliation brought about between the employer and the employee. This is different from Collective Bargaining, as here, the individual employee is one of the parties involved, and not a trade union that he is a part of! The Advisory Conciliation and Arbitration Service (ACAS) has been playing a vital role in providing counselling and arbitration services to employees and employers alike. Ever since the ACAS became a statutory body under the terms of the Employment Protection Act of 1975. It outlines causes for conflict and also provides services to counter these problems at workplaces. Cases of conflict and dispute can approach the ACAS services of arbitration and conciliation, to settle their cases. Almost 75% of the cases are settled at the ACAS and in case they are not, they are sent to the Employment Tribunal, where they are solved. The ACAS first takes on the case and in case of a failure in administering service or coming to a consensus, the Employment Tribunal is the next destination. The ACAS provides extremely impartial services and does not show any vested interest in defending any party. Thus, it is evident that with the wane of Collective Bargaining, the legislations passed as a part of the Employment Law have supported the successful existence of Individual Bargaining. In spite of collective bargaining being a consolidated effort, it did not possess the backing of law. However, legislations have supported and backed individual bargaining, which is why the latter has been more successfully implemented in workplaces in Britain today. Conclusion - The Verdict! As stated through this paper, Individual Disputes and Bargaining have definitely received an upper hand, due to their successful implementation through the Employment Law. The Law has not has as successful in promoting Collective Disputes and Bargaining, as it has supported the Individual Employee. This has particularly come into effective force after the Labour Party came into power, in 1997. One instance to finally support my viewpoint, is the very fact that prior to 1999, employee striking was a potent cause to dismiss them due to breach of the employment contract. However, since 1999, the dismissal of an employee for striking is considered an unfair ground for dismissal. This proves that the legislations passed as a part of the Employment Law have proved to be more successful in encouraging Individual Bargaining as opposed to Collective Bargaining. In spite of its long existence, the importance given to Individual Disputes and Bargaining has increased over this period and is widely prevalent and visible in today's workplaces and organisations! Today, an individual employee can question and appeal against any unjust practices meted out to him, single-handedly. The Law has enabled the strengthening of this mechanism and has made the individual employee a strong voice, from being a meek one in a group of many! This is the final 'verdict' that my paper on Employment Law has highlighted! References Website: www.cipd.co.uk Authors : Alex Bryson and David Wilkinson; Collective Bargaining and Workplace Performance; retrieved from Website:http://www.psi.org.uk/research/employment/Collective%20Bargaining%20Executive%20Summary.pdf Website: http://www.acas.org.uk/ Read More