Essence of Employment Law - Essay Example

?Law for Accounting Insert Law for Accounting Question No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining the question of employment status, nor can strict rules be laid down as to the relative weight, which the various considerations should carry in particular cases.” Per Lord Griffiths in Lee Ting Sang Appellant v Chung Chi-Keung and Another Respondents [1990] 2 W.L.R. 1173 Discussion The statement above is correct to some extent from the fact that the list containing issues of employment has never been compiled and there is no time it will be exhaustively compiled and followed. This means that the rights of employers and employees are never respected which shows that the Department of Labor is not doing enough on its operations concerning employment issues (Clarke 2000). However, this issue mostly affects the employees more than it happens to the employers. Moreover, there is a big difference between employees and independent contractors, which means that if the law protects the employees, then the independent contractors are ignored. The statement above is also incorrect to some extent from the fact that both the federal and states obey and enhance the employment law (Employment Rights Act 1996). The law is everywhere and known to every person. It is included to the federal constitution of United States and respected by the government. Therefore, these facts disapprove the statement above. Therefore, the ultimate aim of this section is to outline both sides of the statement above giving examples of cases that have been experienced due to the issues of employment law (Honeyball 2008). It begins by giving a differing argument to the statement above – supporting the employment law – followed by examples of cases involved. It then outlines an argument in support of the statement above (differing with employment law) providing examples where employment law never helped. Essence of Employment Law The employment law refers to combination of massive ordinary law rulings, administrative rules, statues and legislation, which are then interpreted as employment law. Its rule descends under the sunshade of both central and state statutes, as well as judicial precedent and administrative directive. When employees file allegations for employment biasness, compensation, unemployment (Dose-Deigenopoulos and Holand 2000). Compensation and employees’ compensation, these claims lie under employment law. In other words, employment law covers all these areas that concern both employers and employees. They are the regulations that govern the working environment of an organization (Clarke 2000). At the same time, supervising workplace security and standards, retirement and pensions, fair wages, workers benefits, and several other issues are inclusive in this broad range legal field. It tackles the actions, responsibilities and rights of both the employer and employees. Therefore, this law unites and enhances the relationships among the employees, employers and employer-employee relations. The most famous and common managerial regulatory body for employment law is the Department of Labor, which is present on both the federal and the state stage (Honeyball 2008). Rights at Work There are several rights of people at work well known as employees but these rights depend on two main aspects; the stator aspect of the employee and contract of the employee. Note that the employees contract can never eliminate their rights they have as par the law (Employment Rights Act 1996). Therefore, if for instance, a person has a contract, which affirms that the person is only entitled to have a holiday of no more than two weeks annually, which are paid for. However, according to the law, all permanent workers are, give the right to 28 days’ holiday annually, it shows that this section of the contract is annulled and is not applicable. The right of employees under law, which order 28 days’ holiday, applies instead (Dose-Deigenopoulos and Holand 2000). The contract will only apply if it gives an individual more resting time, say two weeks, as it gives the person greater rights than it is stated under law. This shows that there are some differences between contractors and employees in terms of performance and operations especially when employment law is concerned (Honeyball 2008). Statutory rights These are lawful rights centered on laws passed by parliament. Almost all employees have some lawful rights no matter the number of hours they spent on work every week. However, there are some employees, though few, who have no right to some statutory rights. At certain times, a worker only benefits a right when they are employed with their bosses for specific period, and when this is validated, the length of time before the worker achieves the rights is as mentioned below (Smith and Thomas 2007). Except if an employee is in the group of employees who are left out, the following rights will apply to them: I. The right to a printed statement of employment terms within the first two months of work II. The right to a detailed pay slip (Valentine 2000). This is applicable from the initial day the worker begins to work. III. The right to get wage that is in accordance to the national least salary. This also applies from the initial day of employment. This is clearly stated under the right to pay of the national constitution (Clarke 2000). IV. The right to prevent or stop illegal inference generated from pay. This is applicable from the initial day of work. V. The right to paid holiday. Permanent workers have a right to at least 28 days every year. Partial workers have the right to a pro rata amount (Employment Rights Act 1996). VI. The right to have a break for trade conference duties and operations. Note that this is no essentially had to be paid. The workers also have a right to be escorted to a disciplinary or complaint hearing. If a worker participates in an official industrial activity and is send away because of that, it will be treated as an automatic unfair sack (Dose-Deigenopoulos and Holand 2000). VII. The right to be paid time off to search for employment if being made superfluous. This is applicable to workers who have worked for two or more years. VIII. The right to time off for learning in college or university or training for 16-17 year teens and its applicable right from the beginning of work IX. Right to get a pay for time off due to ante natal care and it applies right from the beginning. X. The right to paid maternity leave as well as paternity leave (Employment Rights Act 1996). Note that these are just but a few of the rights of employees at work, which apply, to all full-time workers as well as to the part-time employees. These statutory rights make the statement by Lord Griffiths, which states that no exhaustive list concerning employees and employers has ever been complied. However, it is clear that there is a list, which covers almost all areas of employment and protects all employees (Collins 2004). Therefore, Griffith’s allegation was wrong because the list is clear. Moreover, it is supported by the following case, which involved employment law. The case between Yewens v Noakes (1880) 6, QBD 530 is one of the most famous cases in the employment field. This was a case that involved an English tax law and tackled the question of the separation between master and servant (Marson 2009). The problem came in when the statutory right was ignored by the master when the servant occupied houses where assertions and foundation were inhabited by a servant or other individual for guidance. What this means is that a servant was staying in one of the houses that belonged to the master just to protect it but the master dishonored the statutory rights and decided to throw him away on time of duty (Clarke 2000). However, according to the ruling by the Court of Appeal, the clerk who had an annual salary of ? 150 did not lie within the description of servant. Lord Justice Bramwell gave a ruling that stated, “a servant is an individual who is focus to the authority if his master as to the way in which he shall undertake his duty (Dose-Deigenopoulos and Holand 2000). This means that in fact, it was the master who was helping the clerk by providing him with shelter, which means that the clerk was not even supposed to be paid. This judgment was supported by Lord Justice Thesiger who stated that it was clear that a paid clerk was not a “servant” any more than were “the boss of a bank, a foreman with high salaries, individuals in the position almost of gentlemen” (Honeyball 2008). Justice Thesiger meant that the clerk was earning good wage like a working person who struggles to wake up early and work hard to get paid. He was actually benefiting a lot and had no right of a servant at all. In fact, he was supposed to be paying rent for the house (Collins 2004). In this case, the employment law never took its course because indeed the clerk was not an employee of the master rather; he was his tenant and was supposed to pay rent. Therefore, the judgment issued by the judges was very correct because it protected the rights of employers (Smith and Thomas 2007). Workers who are not entitled to some statutory Rights Certain employees are not permitted to some statutory rights. They are: I. Any person who is not a worker, for instance, an agency or freelance employee is not obliged to statutory rights (Marson 2009). Nevertheless, most employees are permitted to some rights like the national least salary, confinements on working hours and other health and safety rights, the rights to stop discrimination against them and paid holiday. If a person is not a worker but an agency or freelance worker, a trainee, casual worker or self employed, the person need to look for some assistance from experienced adviser like a Citizens Advice Bureau (Smith and Thomas 2007). II. Workers who usually work outside the boundaries of say UK, US, Australia and so on III. Members of the police service. Nevertheless, members of police service are wrapped up under discrimination law (Employment Rights Act 1996) IV. Members of the armed forces who are wrapped up under the discrimination law V. Merchant sea people and share fishermen (Marson 2009) VI. Some employees in the transport business are not permitted to enjoy paid holidays or boundaries on their working times by law and have to depend on the contract. This is why there is a difference between a contract and employment law (Valentine 2000). As far as a contract is employed, the employment law becomes powerless in the sense that the statutory rights do not cover individuals under contracts (Collins 2004). This means that individuals under contracts can either benefit or lose a lot as an effect of not being covered by the statutory rights. VII. The doctors under training are not liable of paid holidays and have to depend on their employment contract. Just as mentioned above, the statement by Lord Griffiths although it is wrong on one side, it also has some truth. Nowadays, several people are unsecure at their job places or are being harassed because of one reason or another. Employees at companies are abused through being overworked, given very little wages, being abused by their employers who call them names, and feel insecure because they can be terminated any time (Collins 1992). In these cases, the statutory law appears like diminished in the sense that it is present but does not apply or help such abused employees (Marson 2009). Question 2 Betty, Claudia and Joe have worked for Coffee & Beans PLC, which specializes in the roasting and retailing of coffee. It operates a number of coffee shops across the UK. a. Betty has worked for the company’s Russell Square store as a barista for several years. In her role, she has been responsible for the preparation and serving of coffee. Recently she has come under a lot of pressure at home because her husband told her that he wanted a divorce and moved out of their home, leaving Betty to look after their young son and her aged mother on her own. Her manager, Francis, noticed that she was getting slower at her job and was making a lot of mistakes. He gave her warnings on several occasions. He dismissed her when she spilled and splashed hot coffee on customers for the 4th time in a week. It is clear that Betty is able to claim unfair dismissal by Francis who is her manager for several reasons. Francis was wrong by sacking Betty after her good services she had served for several years (Employment Rights Act 1996). To begin with, Francis was wrong because he never bothered to find out what was wrong with Betty that made her deteriorate in her performance. Francis had noticed some changes on performance of Betty in business, but never took time to find out what had happened (Clarke 2000). According to the business law, a business owner or manager is obliged to enquire for the problems the employees are facing on the ground because once they are affected the business is affected too. If Francis could have found out that Betty was depressed and stressed up with personal issues, which were very sensitive, he could have opted to advice her and find solution to her problem, probably give her an off to just relax and have a peace of mind. However, he never thought of that and therefore, he broke the business law which protects business people and employees in business departments (Dose-Deigenopoulos and Holand 2000). Besides, Betty is an employee who is not a member of an excluded class. This means that her claim is right and can be considered from the fact that she has been a faithful employee who has served Russell Square Store for more than three years. According to the 1996 employment Act, the notice needed to be issued by an employer to end the contract of employment of an individual who has been incessantly an employee for more than one month should not be less than a week’s notice if the period of employment is no more than two years (Employment Rights Act 1996). However, for Betty’s case, it should have been more than one week because she has worked there for more than two years. Besides Betty was not given a notice about job termination, she was only warned about her performance. A warning is very different from a notice as far as employment is concerned. A notice is always specific where an individual is told that you ought not to do this and that and the behavior must stop before a specified date. This entails realizing where the mistake is and giving warning with regard to the problem (Valentine 2000). A warning on the other hand is just a serious command issued when something wrong happens at the site of business. Betty’s performance had deteriorated and it was right to give her warnings for that. However, Francis’ approach to the situation was not good and the dismissal of Betty was not right because she was not given notice at all. Besides, Betty’s notice could have been of more than a week because she had served Russell Store for several years. Therefore, Betty has the right to claim unfair dismissal (Collins 1992). Iceland Frozen Foods Ltd v Jones [1983] ICR 17, EAT Mr. Jones was the supervisor of the night shifters at I.F.F.L. Mr. Jones was responsible for locking the administrative block in the morning after the night shift and unlocking it at night when they enter for job (Iceland Frozen Foods Ltd v Jones 1982). He was also responsible for reactivating the tie alarm before leaving the building after accomplishing the night shift. In the morning of 2nd July, Mr. Boyland who is distribution manager was present on that morning and discovered that administrative block had not been closed and the reactivation of the alarm is not done. He also discovered that the night shift employees had not performed their work to the desired level, which means they were employing the “go slow” technique in order to earn some extra cash during overtime (Iceland Frozen Foods Ltd v Jones 1982). After a few minutes of interview with Mr. Jones, Boyland decided to dismiss him after arriving at a conclusion that Mr. Jones planned for the “go slow” as well as deliberate leaving of the administrative block unlocked and failing to reactivate the alarm (Employment Rights Act 1996). Mr. Jones then decided to file a claim for unfair dismissal (Iceland Frozen Foods Ltd v Jones 1982). The judgment however examined the case keenly and ruled out that the evidence provided by employer, Mr. Boyland was not sufficient to dismiss Mr. Jones. This is similar to Betty’s case in the sense that the Francis never examined Betty’s situation properly before dismissing her (Loader 2008). b. Claudia has worked for the company’s Islington store as a shop floor supervisor for 10 years.  One day she removed ?  2000 from the store’s safe and put it into her handbag. One of her colleagues, Phoebe, saw her removing the money from the safe and placing it into her handbag. Next day, the company’s managing director, Steve, received a written complaint from Phoebe stating what had happened. He checked the video tapes and found that Phoebe was telling the truth. Steve called Claudia into his office and told her that she was sacked. Claudia, who had an exemplary employment record, needed the money in order to be able to get proper medical care for her father. Claudia is able to claim unfair dismissal but her case is slightly critical in the sense that what she was trying to do was not right according to the 1996 Employment Rights Acts. What Claudia was doing was actually stealing from the Stores, safe. However, she can claim that she was not given any notice for her dismissal despite working hard and faithfully for 10 years in the company. She should have been given a notice of more than one week before being sacked. Moreover, Steve never asked Claudia what happened or why she did that instead, he just called her and gave her a dismissal letter (Dose-Deigenopoulos and Holand 2000). It was wrong to that in the sense that the Employment Rights Acts states that the employer should listen to the employees claims before dismissing them in case a problem occurs. Steve never considered that, and he never bothered to know what made Claudia take the money from the safe. Claudia’s reason for taking the money was genuine although the procedure she used was not right according the employment rights. Therefore, both of them had mistakes meaning that the case has to be decided by the judge to determine who was too wrong (Employment Rights Act 1996). However, the case is likely to be against Claudia because Steve can simply argue that other than the employment rights in the constitution; the company also has its rules and regulations. One of the rules is that any employee caught stealing or taking the company’s properties without asking for permission faces an automatic sack. When a person is employed in any company, he or she must sign some papers among them being these rules and regulations. Therefore, if Claudia signed papers with rules and regulations proving that she concurred with them, then the case would definitely be unfavorable to her. The law must take its course no matter what (Employment Rights Act 1996). The best procedure that Claudia was supposed to follow was to go to the managing director, Steve and share her problem with him and be helped. Being a good servant for several years to extent of being promoted to a floor supervisor show that the company appreciated Claudia’s services. This shows that if she could have gone to the manager to ask for money to take care of her father’s medical bills she could have been helped. Besides, she could have borrowed money as a loan and pay back later in installments. Her decision to go the safer and pick a sum of ?200 was not appropriate (Loader 2008). The judge can also conclude that Claudia has been doing that for quite sometimes by taking advantage of being the floor supervisor. That allegation can also be true in the sense that a person practicing to steal cannot begin with such a massive sum of money. The fact that she was stealing lots of money may prove that she had been practicing the behavior. Therefore, Claudia can claim unfair dismissal but it is very difficult for her to win the case and receive some remedies out of it because the allegations of theft had the camera prove (Employment Rights Act 1996). For example, the British Home Stores Ltd. V. Burchell, which involved a theft case. The employer deduced that a theft had undertaken at the store by staff in a B.H.S. store. Therefore, the employer went ahead to dismiss Burchell after carrying out his investigation (Monkam 2011). The employer tested whether the dismissal was fair or not. That test was: That the employer stuck with the believe that the employee was guilty That he had sufficient proof to maintain his belief That he had conducted as massive investigation as reasonable in situations. Nevertheless, the test was not objective and the employer required only to be contented on balance of probabilities. He was able to win the case because the judge thought the employer had sufficient evidence (Employment Rights Act 1996). Therefore, once the employer has enough evidence and reasons, it is easy for an employee to be dismissed just like that. That is why Claudia is likely to lose the case because the evidence and reasons possessed by Steve are sufficient (Loader 2008). c. Joe has worked for the company’s Manchester store as a manager for 5 years.  He was dismissed when the company found out that he had been charged with theft of money from a Tennis Club Bar. Joe is able to claim unfair dismissal because of some reasons. First, Joe has worked for Coffee and Beans PLC Company for five years and all this time he has had a clean sheet. His records indicate that he is hardworking, determined, focused and industrious. He has handled lots of company’s money while undertaking operations at Manchester store but has never been caught stealing or even alleged to be a thief. This means that the company has no right to dismiss him because of exterior reasons, which do not concern the company at all (Collins 1992). There is no way the company can depend on other sources or exterior events to dismiss an individual. According to the Employment Rights Acts 1996, the company should dismiss an individual if he is caught defiling the company’s properties or undertaking other illegal operations that are against the company’s rules and regulations (Employment Rights Act 1996). Joe’s charges have nothing to do with the Coffee and Beans Company and therefore, it should not dismiss him for that. The company is only supposed to begin monitoring Joe keenly because of the charges he has in order to prove if he did by mistake or by influence of exterior friends or if it is his behavior (Monkam 2011). If nothing comes up, then he should only be given notice and warnings to stop such behavior outside the company because they affect the company indirect especially its reputation. Therefore, Joe has the right to claim unfair dismissal by Coffee and Beans PLC Company because the case did not concern it. Besides, the company never gave Joe any notice for the mistake he had done (Collins 2004). They could not have done that because he had not done anything wrong. Five years of work means a one to two weeks’ notice before dismissal. This is a good claim that Joe can use to claim unfair treatment. The Employment Act determines that every employee has to be given warning and notice before he or she is dismissed from job (Employment Rights Act 1996). 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