Business Law For Substantive Law Of The EU – Employment Contracts And Common Law Duties

Sources of the terms of the employment contract

Business Law for Substantive Law of the EU.

Introduction

A contract of service is used to define the legal relationship between an employee and an employee. A contract of service is used when an individual agrees to perform certain work or services for another under certain conditions and in return for remuneration. It is through this relationship between an employer and an employee, subsequent rights and obligations are created towards both the parties. The Employment Rights Act 1996 is an Act passed by the United Kingdom Parliament to makes rules in relation to the labor laws in United Kingdom. This Act makes various laws and sets minimize standards which every employer and employee has to comply with while dealing with each other (Guest, Isaksson and De Witte 2010). One such rule under the said legislation is the obligation on part of an employer to provide employees with a written statement of terms.

Sources of the terms of the employment contract

Section 1 of the Employment Rights Act 1996, states that, when an employee starts his employment with a particular employer, it is the duty of the employer to give the employee, a written statement which state the particulars of his employment. The said particulars of employment are in the form of an employment contract that consists of every condition imposed on the employee while the employment continues. The source of these contract terms can be different and varied. Thus, an employment contract term can be accepted verbally, in the form of a written contract, in an employee handbook or company’s notice board, in an offer letter or email to the employee, in form of collective agreement, as required by legislation and statute in United Kingdom and in the form of an implied term (Gebel 2010).

Common law duties of the employee

When an employee begins employment under a particular employer, he has certain duties and obligations towards his employer even if when these duties and obligations are not drafted in writing. Some common law duties of an employee are implied and do not require any formal contract term in writing for the same. These duties of an employee under common law are as follow:-

Duty of obedience –Every employee owes a duty to obey the reasonable and lawful orders of his employer. This is stated as a condition essential for a valid contract of service. However, an employee is allowed to disobey orders which are unreasonable or pose a threat on health and safety (Kahn 2010). In Turner v Mason when health threat and safety was the concern, the Court held that an employee is permitted to disobey the orders of his employer which includes an order to allow a servant continue a task which can be violent in nature of lead to an infectious disease.

Common law duties of the employee

Duty of mutual trust and confidence – The relationship of an employee and employer should be based on trust and confidence. Thus, it the duty of every employee to give his best effort for guarantees the smooth and efficient running of the employer’s company. The duty of trust and confidence goes up to include within its scope many other duties like honestly, disclosure of wrongful conducts, keeping the confidential information of the employer safe, work with reasonable care and diligence, no taking of bribe and no competing against the employer. It is also an obligation of the employees to not participate in industrial actions which disturbs business (Noon, Blyton and Morrell 2013). Thus, the common laws duties of an employee are mostly implied in nature.

Common law duties of the employee

As the employees have certain common law duties, the relationship between the employer and the employee also creates certain duties and obligations on part of the employer. Again most of these duties are implied in nature and need not be in writing. The common law duties of an employer in United Kingdom are as follows:-

The primary duty which can employer has towards his employee is to ensure that he provides them with a safe and healthy working environment and condition. It is the primary duty of an employee to take care of his employee’s health and safety. Thus, it is the duty of employers to do everything that is reasonably possible to protect the health, safety and welfare of their employees including the other parties or individuals whose health can be affected by the employer’s business (Martin 2013). Under the health and safety laws in United Kingdom, it is the duty of every employer to provide safe workplace, safe working environment, safe machinery and equipments, safe and efficient individuals working alongside, and minimizing potential hazards at workplace.

Additionally, due to the legal relationship between an employer and his employee, the employer owes duty of care towards his employees. The duty of care is in relation to their duty to look after the health, safety and wellbeing of employees. In case, any employer fails to provide a safe working condition which results in injuries to an employee, the employer will attract the tort law of negligence (Banker, Byzalov and Chen 2013).

Additionally, the employer has the duty of mutual trust and confidence towards his employees and should ensure that the employees in his organization are treated equally without any discrimination and should uphold the respect and dignity of each of his employees fairly dealing with all complaints that come to him from employees (Bruner 2013).

Common law duties of the employer

Introduction

Every country has labor laws which are established to benefit and protect the employees and workers in the country. Similarly, the employees and workers in the United Kingdom have their rights protected under various labor acts, legislations, law, equity and common law. These laws include many labor legislations like the right to minimum wage under Minimum Wage Act 1998, right to paid holidays and breaks under the Working Time Regulations 1998 and equality amongst all the employees under the Equality Act 2010 (Collins, Ewing and McColgan 2012).

The Equality Act 2010 is an Act passed by the United Kingdom Parliament which mirrors and implements the EU Equal Treatment Directives. The said act was codified with the primary objective of bring the various anti-discrimination laws and rules in United Kingdom under one single statute.

Scope and structure of the Equality Act 2010

The Equality Act 2010 came into force in the United Kingdom on 1 October 2010. The Equality Act 2010 was established in United Kingdom for two primary reasons which were to harmonies laws of discrimination and to strengthen and promote the laws which support progress on equality. The said Act has codified together all the separate legislations to form one single statute in United Kingdom concerning anti-discrimination laws (Dolzer and Schreuer 2012). Within the introduction of the Equality Act 2010, various anti-discrimination laws became strict in United Kingdom and required certain public authorities to review the socio-economic hardships suffered by individuals while making strategies. The Equality Act 2010 protects individuals who fall under the protected characteristic in the Act from discrimination, victimization and harassment. The said Act sets a duty on employers to undertake positive actions to ensure that potential and existing employees do not suffer from discrimination or any disadvantage which arises out of protected characteristic (Porteous 2012).

The structure of the Equality Act 2010 is divided into many Chapters and Parts including Schedules which list outs various anti-discrimination laws and the penalties of violating the said laws. Chapter 1 states the protected characteristics and Chapter 2 discusses the prohibited conduct and so now each chapter lists down a key concept which helps to maintain anti-discrimination behavior in the United Kingdom (Lockwood, Henderson and Thornicroft 2012).

Different types of discrimination covered by the Equality Act 2010

The Equality Act 2010 lists down certain types of discriminations which if conducted by any employer towards his employees will be in violation of the said Act. The Chapter 2 of the Equality Act 2010 states the different types of discriminations and they are as follows:-

The primary duty which can employer has towards his employee

Direct Discrimination – Under the Equality Act 2010, direct discrimination occurs when an employee discriminated against his employee resulting from protected characteristic, irrespective of the fact that employee posses they said protected characteristic. The protected characteristic under the Equality Act 2010 in Chapter 1 is described to include age, gender, disability, race, marriage, pregnancy, religion, sex and sexual orientation. Additionally, it is also unlawful to discriminate against an employee based on their association with someone who falls within the scope of protected characteristic (Conley 2012).

Indirect Discrimination – Section 19 of the Equality Act 2010 discusses indirect discrimination. Indirect discrimination arises when an employer applies a clause, prohibition or engages in a practice which is discriminating in relation to the protected characteristic. For example, an employee is treated less favorably because he is gay or a policy is introduced which will make it difficult or a pregnant employee to continue with employment.

Harassment – Section 26 of the Equality Act 2010 describes harassment and states it arises when any individuals engages in any conduct which is unwanted in relation to the protected characteristic and the effect of the said conduct violates the employee’s dignity and creates a humiliating and offensive environment for the employee (Ashe et al 2010). 

Victimization – Victimization is defined under section 27 of the Equality Act 2010 and states that it is illegal to subject an individual to any disadvantage or detriment because the individual has taken an action under the Equality Act 2010 or initiated any proceeding under the said Act (Barnard 2013).

Action employers must take to ensure compliance with the Equality Act 2010

Every employee in the United Kingdom has to comply with the rules under the Equality Act 2010 which require him to ensure that no employee working under him is treated in a discriminatory manner in association with all the protected characteristic listed down in the Equality Act 2010. Therefore, every employer engages in conducts which ensure that the anti-discrimination laws are complied with in his organization. Thus, it is the duty of every employer to take full particulars of a individual before hiring him and be assured about his health, age, religion including the fact whether he has any disability which can put him on a disadvantage at work (Foster and Norton 2012). Thus, under Section 20 of Chapter 2 of the Equality Act 2010 it is the duty of every employer to make adjustments for his disabled employees. Thus, the duty of reasonable adjustment arises when an policy or criteria initiated by an employer, or when a physical nature of a premises which is occupied by the employer or where there is lack or fault in the auxiliary aid leading to which a disables employee is put to suffer an substantial disadvantage or detriment compared to other people who are not disabled. Thus, it is the duty of every employer under the said section to avoid such incidents that promote discrimination towards certain employees who possess certain disability.

Scope and structure of the Equality Act 2010

Main sources of European Union (EU) Law

European Union is a political and economic associate of around 28 states which are located mostly in the continent of Europe. The European Union has established an internal system of law which applies to its member states. The European Union Law is derived out of three different sources which are primary law, secondary law and supplementary law. The fundamental source of European Union laws are the treaties which the member states sign and ratify (Klarsfeld, Ng and Tatli 2012).

Sources of Primary Law – The primary law of European Union is sourced out of treaties especially the Treaty on the EU and the Treaty on the Functioning of the EU. These treaties described the ability of Union and Members states and gave powers to European institutes. The primary law also includes protocols and amending treaties.

Sources of Secondary law – The source of secondarly law are derived from unilateral contracts and agreements between members’ states. Thus, agreements signed by member states in and outside the organization are also useful in deriving the European Union Law. This includes agreements between the institutions of member states (Sang and Powell 2012).

Sources of Supplementary laws – The Court of Justice are the court created as the highest court in European Union and is recognized in every member country. The case laws, precedents and learning of the said Court are the supplementary source of the European Union law. Apart from the case laws, the globally accepted principles of international laws are also a source from which the European Union law is sourced.

Directive 92/85/EC

The Directive 92/85/EC was introduced on 19 October 1992 with an intention and objective to promote and encourage improvements in the health and safety of pregnant women at workplaces including women who have recently delivered babies and are breastfeeding. The Directive 92/85/EC was an initiative to provide extra liberties and protection to pregnant women and women who are breastfeeding at work in European Union. Thus, the Directive 92/85/EC includes an continues maternity leave for at least 14 weeks (2 weeks of which must be taken before delivery), the right which allows time out for examinations without loss of pay in case the said examination is conducted during work hours and prohibition of dismissal on the grounds of pregnancy (Smith 2013).

Thus, in the United Kingdom on 6 April 2001 new laws in relation to pregnant women at work was introduced under the maternity and parental leave (amendment) regulations 2002. The said amendment allowed pregnant women to take 26 weeks leave even when they have not worked with the organization for long. If a pregnant women works continuously for 26 weeks, she can take extra leaves for which she will not be paid.  Under the legislation of maternity pay regulations 2006; all pregnant women are entitled to 52 weeks of leaves (Bulmer and Lequesne 2013). Thus, the said section was incorporated in the United Kingdom law as compliance to the European Union Directive 92/85/EC

Different types of discrimination

Directive 2000/78/EC

The Directive 2000/78/EC was introduced on 27 November 2000 which introduced and established a general framework which promoted equality in employment and occupations. Thus, the Directive 2000/78/EC became a significant part of the European Union labor laws which aimed to prohibit and eliminate discrimination which was based on disability, religion, race, sex, sexual orientation and age at workplace. The said directive introduced a responsibility on every employer in the European Union to ensure they practice anti-discriminatory behavior and conducts at their work place. The result of the said directive lead to introduction of the Equality Act 2010 in the United Kingdom, which mirrored out the said directive of the European Union labor laws. The primary objective of the said act was to codify all the separate statute in relation to anti-discrimination laws and create single legislation for the same (Zoni and Lucchini 2012). The said Act introduced a duty on every employer in United Kingdom to make reasonable adjustments to eliminate discrimination which results in disadvantage or detriment of any disabled employee. The said act created protected characteristic like age, disability, religion, race, sex, sexual orientation, marriage, pregnancy, etc which were the ground based on under which every employee was prevented from suffering disadvantages or detriment. Thus, the labor laws of the European Union were incorporated as national laws in the United Kingdom.

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