Outline and explain the contents of employment contracts and the legal liabilities of managers and directors.
Demonstrate the ways in which European Union law affects the conduct of business in the United Kingdom.
Identify and explain the main sources of law affecting businesses and policies relating to customers, related companies and employment.
There are three main sources of EU law that is the primary law, secondary law and supplementary law. The vital sources of primary law are the Treaties that structures the European Union. It is derived from the treaties that establish the distribution of competences. The secondary sources are the legal tools that dwell on the Treaties and contain secondary law that is unilateral in nature along with conventions and agreements. It is comprised of agreements, as well as unilateral acts. Supplementary laws are those parts of law not given by the treaties. This part is majorly concerned with Court of Justice, international law and the general principles. The supplementary law has helped the court to reduce the gap between the primary and the secondary law.
Article 267 is stated as the primary ruling, used in major proceedings. The important proceedings use the concept of Article 267 because it defines the concept and state that the interpretation must be done keeping it in mind. The mechanism exists between the EU court of justice and the national court. It provides strong support for the court of justice by interpretation of the laws of EU (Lord, 2013). Adjudication is easier in this regard, and the matter is undertaken with high degree of efficiency. Therefore, it brings Better Avenue to the parties and helps in maintaining a high standard of accuracy (Arnull, 2010).
It is called primary ruling due to its feature. It helps in providing judgment that is accurate in nature, and leads to an enhanced decision making process. It provides a bigger scope for the treaties interpretation. The interpretation of treaties cannot be done in isolation, therefore, the article paves the way for interpretation and helps in interpretation. The interpretation helps in the decision-making process. Article 267 prescribes that the primary rules have the potent to provide decisions and hence, it is considered as the last resort. The ultimate destination can be taken with the help of its support. According to this section, the primary ruling needs to be followed by the national court. The primary ruling will help in providing the judgment and provide a clear interpretation. When the case if governed by Article 267 then the judges of the court of the member state suspends the happening. Article 267 is the last resort and aids in smooth decision-making. There is no rule ahead of it and considering this article the decision can be taken that will be final (Kenny, 2012). The restriction that is placed by the Article 267 on the domestic judges is:
The Court of justice will do the preliminary ruling and the interpretation will be done accordingly. Moreover, the European Union considering the validity of various acts will do the validity, as well as interpretation.
The position of TFEU is superior and appears as a superior to the judges of the national court in determination of the question. The judges cannot take position when it comes to the matter of the state liability; it need the intervention of the TFEU. The judges of the national court are needed to consult while referring. This reflects the superiority of the TFEU. The judges of the court will engage in referring, as they do not want the government to be liable (Giacomo, 2011). The judges of the domestic court need to provide decision considering the TFEU; it cannot altogether work in isolation and provide a judgment. This implies that the status of the TFEU is higher and acts as a standard or reference. The ruling needs to be abiding by it. This implies that the decisions will be based considering the rules, and the judge needs to refer it for providing the decision.
The reference for primary ruling plays a vital part in ascertainment of the procedure that can be put to exercise before the European Law. This theme is available for every judge of the member states. The referred cases are purely for the interpretation of validity. Hence, this leads to a strong advantage for the business. There appears to be an active cooperation between the national court and the court of Justice. It is the last resort, and there is no remedy of judicial nature ahead of it. The disputes are settled through interpretations that are uniform in nature. This leads to legal certainty and ensures that the same thing is observed in every state. This leads to better cooperation and smooth running of the business. This influences the remedy that is important for the overall development and helps in developing a sound relation (Craig & Burca, 2014). The businesses in UK will get a uniform decision from the Article 267 as it helps in providing decision for the betterment of the parties. The regulations have general acceptability and binding in nature therefore, the decisions are valid and help the businesses. Therefore, Article 267 has been termed as primary ruling, and the last resort because of the various advantages it possesses. It helps in smooth conduct of the business by providing an accurate decision whenever the need arises (Papadopoulos, 2010). Therefore, any dispute can be referred, and the proper interpretation can be done through this article. Hence, it establishes uniformity that is essentially needed considering the decisions to be made.
With the due passage of time, the claims in the field of employment have increased considerably. Hence, there is a strong urge, as well as need to resolve such claims. The Employment Appeals Tribunal and the Equality Tribunal has led to the emergence of Alternative Dispute Resolution (ADR). ADR is a process that is non-adversarial in nature where an impartial third party takes part actively in settlement of the dispute. ADR contains mediation, conciliation, and arbitration (Born, 2014). There are various advantages of ADR over litigation, like speedy resolve of the dispute, less costly, many ranges of solutions, etc. ADR has a strong advantage over the process of litigation and this is one of the major reasons why it has gained a lot of importance in the present time (Kendall, 2008). The disputed parties want to reach to a conclusion with ease and flexibility without wasting time, and such speedy issue resolve is possible through ADR. Therefore, ADR scores over other forms of dispute resolution. It is the need off the hour because it has various advantages and user-friendly.
There are various forms of alternative dispute resolution (ADR) and according to the various situations, the methods are used.
The Employment Equality Acts lay the foundation to a mediation process that is voluntary in nature. It is a strong prospect and worthwhile because it leads to a neutral, as well as impartial person to look after the parties, probe the issue that has arisen, and assist them in reaching a course of action that is acceptable on a mutual basis. The process of mediation is speedier and carries the advantage of privacy. The Equity Tribunal publishes no decision. In sensitive claims like sexual harassment at the place of employment or wrong treatment, this process is highly recommended (Kolkey & Chernik, 2012).
The Industrial relation Act prescribes for a Conciliation service that is voluntary in nature. The Relation Commission of the Labor conciliation service provides an external conciliator, professional in nature to help the parties in resolving the dispute. The process is defined by the LRC as a search that is facilitated in nature that happens between the parties those are disputed. Conciliation has a strong record of a settlement of 80% (Kolkey & Chernik, 2012). Conciliation is useful when a particular agreement needs to be reached considering the legal and technical issues. It can be used when the process of mediation has been undertaken yet the decision or result does not arrive.
An ADR process where the parties to the dispute present arguments, as well as evidence to a third party is independent of nature. In short, the arbitrator makes the determination. Arbitration is important when the subject matter is significantly technical in scenario or where the parties to the dispute vouch for confidentiality. Arbitration can be voluntary in nature or can be when a court order (Deventer, 2010).
According to the Law Reform Commission 2010, it was reflected that the Arbitration, Mediation and Conciliation could be advantageous for the employers if it has included in a contract clause that leads to a solidity and will make ADR the first choice before moving to the legal system (Deventer, 2010). The main aim of ADR is to ensure that the parties are aware of the options that are present in dispute resolution. Employers are becoming strongly aware of the value when the options like mediation, arbitration, and conciliation are included in the contracts or the policies. The inclusion of such options in the internal grievance, and process of discipline, the employer keeps disputes at bay (Kluwer, 2014).
When a trade dispute happens or is apprehended, then the role of ACAS comes to the forefront. ACAS at the plea of one or the other party provides help that helps in arranging for settlement. The role is properly managed with the ACAS collective function of conciliation. When it comes to the voluntarism approach, ACAS do not have any power to force any parties for participation or in imposing a settlement. As per ACAS, the sole aim of conciliation is to provide support to employee, as well as employer representatives to help both the parties in reaching a conclusion. The only obligation that is needed is that both parties must be willing to communicate face to face and no other requirements are imposed by ACAS. The project advisory work can be differentiated from the collective conciliation of ACAS. While using ACAS, the parties to the dispute keep the conflict away. Moreover, ACAS needs the joint participation by both the parties. The power of ACAS stabilizes in getting the employer, as well as employee to get associated in effective conversation that may happen either in the form of conciliation or advisory projects. The advantage ranges from spontaneous solution to implementation of strategies for effective working and better consultation (Kluwer, 2014). Moreover, ACAS is associated in mediation services too that aims to provide mediation when there is a grievance and even in the training of mediators so that the conflict can be managed in a rational manner. ACAS works on its main ethics that is t bring the parties face to face and thereby laying the stage for an effective way so that the conflict can be managed.
To strive for better regulations and fair treatment of the employees, the Equality Act came into foreplay from October 1, 2010, that replaced various other laws. This new structure aims for the employees safeguard and leads to equal opportunity.
The new act helps to provide a cushion against the unfair treatment. Discrimination happens in various places like hospitals, organizations, public bodies, etc. The sole aim of the Equality Act is to safeguard the employees from unfair treatment and various kind of harassment. The main provision of the Equality Act is to provide protection about areas like age, sex, marriage, race, etc (EA, 2010).The acts that were club with the Equality Act are:
Direct Discrimination happens when someone is treated with less reverence as compared to others because of some protected feature they contain, or they are linked with someone who has a protected feature.
This discrimination applies to race, religion, disability, gender, and sex. This is termed as direct discrimination because there is an association with another who contains a specified feature or characteristic ((Kamm & Lee, 2013).
This discrimination happens because others are of the view that an individual contains a well-defined protected feature. It may happen even if the person does not have that particular characteristic (EA, 2010).
This discrimination happens when there is a condition, rule, policy that applies to everyone but most specifically to the people who are having a point of disadvantage or share a form of characteristic that is protected in nature (EA, 2010). This form of discrimination can be shown when there is a justification that one has acted in a reasonably wrong manner.
It can be said to be an unwanted conduct that is linked to relevant protected feature that has the aim of violating the dignity of the individual or creating an atmosphere that is harmful to the individual ((Kamm & Lee, 2013).
It happens when the employee is treated in a manner that is an offense to the dignity because they have raised a voice under the Equality Act or they are under a suspicion (Equality Impact Assessment, 2013).
All employers irrespective of the size come under the ambit of the Equality Act, 2010. As an employer, it needs to be noted that the law is applicable even if the workers are on a temporary basis, do not have a written contract, or work under different position like trainees, apprentices, etc. Every employee contains the same duties under this Act. Under this, any form of discrimination, harassment, or victimization is not allowed.
The employer must know that the prejudice-free recruitment helps to get the correct person on board. This Act covers the total process of the recruitment. To keep racial discrimination at bay, qualifications of the overseas must be kept at par with the UK qualifications. Secondly, there should not be any discrimination against the disabled people through the design of the application form. Thirdly, it will be unlawful in nature to vouch for a candidate who is young in the notion that a young person will be dynamic and hungry for success (Kamm & Lee, 2013).
Apart from very restricted situations, the employer is not needed to ask an applicant regarding the health or disability until the job is offered on some condition, inclusion in a pool of candidates, etc. A woman should not be denied a job if she is pregnant or on maternity leave or illness during pregnancy. Equality Law states that a woman does not have to specify that she is pregnant. This is considering the fact that a decision regarding the selection or rejection should not be influenced by the news of pregnancy.
It is a common parlance that employers use the sickness record of workers for making decisions regarding bonus, promotions, references, etc. if disabled person time taken will be considered the same as the sickness time by a worker not disabled then it may lead to treatment of the disabled person in a worse manner. Hence, it is the duty of the employer to record disability linked time apart from the general sick leave. A link must b established with the one who is absent for a long time and the valid reason must be known.
Every organization operates in a manner so that the performance of the workers is enhanced and the work is done as prescribed. This can be done by the employer through the process of appraisal that may be dealt in the meetings or can be done as per the performance reflected in the completion of the job. Hence, performance should be the major parameter for appraisal. The employer should not consider any other personal link ups, association, or influence (Equality and Human Rights Commission, 2015). There must be fairness in the appraisal decision and be valid.
Various other compliances can be followed to make the organization free from discrimination. The ones that are discussed are considered the major ones; however as the scenario of the workplace and the organization there might be different forms and the employer needs to take care of it for smooth conduct of the business.
Conclusion
From the above drafted report, it can be commented that the European law plays a major role in the smooth conduct of the business and helps in settlement of disputes. Therefore, it is aptly described as the last resort. Moreover, there is a strong need for peaceful settlement of disputes and it is one of the main reasons ADR and its various forms are popular all over. The benefits of ADR are immense and help both the parties. Lastly, the inception of Equality Act, 2010 has provided immense solidity to the employees and reduced unfair treatment. Hence, it can be said that the employee contract has undergone a huge change and priority has shifted to employee welfare.
References:
Arnull, A 2010, ‘Law Lords and the European Union: Swimming with the Incoming Tide’, European Law Review, vol.35, no. 1, pp. 57-87.
Born, G 2014, International Commercial Arbitration, Frederick, MD: Wolters
Craig, P and Burca, G 2014, EU Law: Text, Cases, and Materials, Cambridge University Press.
Deventer, N.K 2010, Yearbook commercial arbitration, Huntington: New York
EA 2010, Equality Act, viewed 30 March 2016, https://www.citizensadvice.org.uk/discrimination/about-discrimination/equality-act-2010-discrimination-and-your-rights/
Equality and Human Rights commission 2015, viewed 30 March 2016, https://www.equalityhumanrights.com/legal-and-policy/legislation/equality-act-2010/equality-act-guidance-codes-practice-and-technical-guidance
Equality Impact Assessment 2013, Increasing the Magistrates’ Court fine limit, viewed 30 March 2016, https://www.justice.gov.uk/downloads/legislation/bills-acts/legal-aid-sentencing/fines-eia.pdf
Giacomo, D.F 2011, The EU Charter of Fundamental Rights: From Declaration to Binding Instrument, Gentium Comparative Perspectives on Law and Justice. Springer.
Papadopoulos, A. S 2010, The International Dimension of EU Competition Law and Policy, Cambridge University Press.
Kamm, R and Lee, M 2013, Discrimination Claims: The Equality Act 2010 and Key Cases, viewed 29 March 2016, <https://www.11kbw.com/uploads/files/PO_RKPaper.pdf>.
Kenny, M 2012, ‘Options between Legislative Intervention and Judicial Collaboration: Improving the Effectiveness and Coherence of EU law?’, Northern Ireland Legal Quarterly, vol.63, no.4, pp. 435-448.
Kendall, J 2008, Expert Determination. 4th edition
Kluwer A 2014, International Commercial Arbitration, Austin: Walters
Kolkey, D.M, Chernick, R, Neal, B.R 2012, Practitioner’s Handbook On Arbitration and Mediation, Huntington, N.Y.
Lord M 2013, ‘The Interface between National and European Law’, European Law Review, vol. 38, no. 4, pp. 437-456.
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