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.
It is not necessary that employment contract should only be one document. There are various terms that can be incorporated into an employment contract from various sources and it can either be verbal or written. Terms which have been mentioned in a contract explicitly are express terms which can either be verbal or written and the parties have agreed upon them same. These include the description of the job, working hours, sick pay, wages, description of the job and notice. There are a number of different in which these terms may be found such as employment particulars written statement, Handbook of the staff, pay slip, advertisement of jobs and most obviously the employment contract in the writing itself (Honeyball, 2006).
There are certain conditions and terms that are implied into an employment contract by way of common law, practice or custom. There, for example, exists a duty of confidence and trust between employee and employer in all relationships (Sella, 2015). If there is the breach of that fundamental trust, then a claim of action may follow. In the case of an employee, it would be the constructive dismissal claim. There are various other types of implied terms which can include in the decision of the employer for the payment of bonus each year or a redundancy that is enhanced in the pay; this could give rise to the practice and custom of receiving of these kinds of benefits (Levine, 2002).
As an employee there exists a common-law duty of care (McClelland, n.d.). Meaning thereby that with respect to his relationship with his colleagues and the employer it is essential for the employee to exercise care and skill that is reasonable. The Health and Safety at Work Act 1974 in addition also requires that reasonable care has to be taken for the safety and health of the other people at work as well the employee himself. This also extends to co-operating with the employer to ensure that he is able to fulfill the legal duty that he has.
Under the common law the duty of the employee, is to ensure that reasonable care of safety and health of his employees, as well as himself, is taken which can be affected by what they are doing or not doing during the course of employment. Cooperation with the employer on matters relating to safety and health are also important. The equipments that have been provided for the purposes of safety should not in any manner be misused. The instruction from the employer with respect to safety and health are required to followed and relevant training with respect safety and health to be attended. Any defects or hazards at the workplace is required to be reported. There should not be any obstruction or interference with what has been provided for the safety and health at the place of work (Dabscheck and Riley, 2006).
There is an implied obligation under common law which is owed by the employee for obeying orders that are reasonable and the law of the employer. In the case of Barber v. RJB mining, it had been opined that there is statutory safety and health standards that the courts have accepted which may circumscribe the common law right of the employer for giving orders that have an effect that is endangering the employee.
The main duties under the common law of the employer are with respect to the safety and health of the employees. These include the duty of care which means that it is necessary for the employer to take care of the safety of the employee which is reasonable, avoiding the exposure of the person to risk that are not necessary to ensure that work system is safe (Worksmart.org.uk, 2016). The second is employer’s duty to maintain confidence and trust that is mutual. The employer must not without any proper and reasonable cause behave in a way which is likely or calculated for destroying or damaging seriously the relationship of confidence and trust with the employer. This duty, in particular, puts an obligation on the employers for ensuring that they are treated at work with dignity, and to deal with complaints of the employers in a manner that serious and fair. Lord Writght in the case of Wilson & Clyde Coal Co Ltd v English [1938] AC 57 gave the duty’s exposition which is a landmark. The plaintiff in this was a miner who had been injured in the coal mine of the defendant (Wilson & Clyde Coal Co Ltd v English, [1938]). It was while traveling through the pit at the end of the shift for the say that a haulage plant which was in motion crushed him. During the time of traveling this equipment should ideally have been stopped. The employer of the defendant placed an argument that the duty had been discharging since they were providing a system of work that was safe by appointment of a qualified and competent managed. The employers it was opined by the Court were liable. There could not be avoidance of the duty of providing a system that is safe for working only by the appointment of an employee who is competent. There was three key area that was deduced by the House of Lords in this case which provides that the employer needs to provide staff that is safety conscious and competent, safe equipment and plant that is adequate and a system of work that is safe.
There are a total 116 different legislation pieces that have been brought together by the Equality Act, and one single Act has been formed. This new act combined provides for a legal framework for the protection of individuals’ rights and ensuring that equality of opportunity is advanced for everyone.
The intent of the act is for strengthening, harmonizing and simplifying the legislation that is in existence at present and providing a new law against discrimination to Britain which will ensure that individuals are protected from treatment that is unfair and promote a society that is equal and fair. The main nine pieces of legislations that merged together are the Race Relations Act 1976, the Sex Discrimination Act 1975, the Disability Discrimination Act 1995, the Employment Equality (Sexual Orientation) Regulations 2003, the Equal Pay Act 1970, the Employment Equality (Age) Regulations 2006, the Employment Equality (Religion or Belief) Regulations 2003, the Equality Act (Sexual Orientation) Regulations 2007 and the Equality Act 2006, Part 2 (Wadham, 2010).
The provision of employment of the Act reflects largely the present law and all workers have been covered under it. The scope of the Act as the present legislation is wide enough so as that it extends to those people as well who are not employees necessarily for protection against discrimination. The contract workers could be included in this and, even in few circumstances, the volunteers as well. The Equality Act’s introduction harmonizes, brings together and in some ways extends the law of equality that is in existence. The aim of the Equality Act is to make the law more clear, consistent and easy to be followed so that the society can be made fair.
The Equality Act also includes other provisions, including the new concept of dual discrimination, an extended public sector Equality Duty and a prohibition on age discrimination in services and public functions.
The Act has two main purposes – to harmonize discrimination law, and to strengthen the law to support progress on equality. The Act consists of 16 Parts and 28 Schedules (Legislation.gov.uk, 2016).
There are seven main areas which have been detailed in the Equality Act to be discriminatory behavior (Gov.uk, 2016).
The first being that of Direct Discrimination, this type of discrimination occurs when a person is treated in a manner that is less favorable as compared to other people because of the protected characteristics they are thought to have, or they have or because of their association with people who have protected characteristics (Butler, n.d.).
The second being that of Associative Discrimination, this is already in the application for Religion, Sexual Orientation, and Race. This now extends under the Act to cover Disability, Age, Sex and Gender Reassignment. This would be against someone a direct discrimination if they are associated with a person who possesses characteristics that are protected.
The third is that of Perspective Discrimination; this is already in the application for Race, Age, Sexual Orientation and Belief or Religion. This has been extended under this Act to Cover Gender Reassignment, Sex and Disability. This, however, is discrimination that is direct towards an individual because they are of an opinion that the person possesses particular characteristics which is protected. Even if a person does not actually possess such characteristics, this would still be applicable (Discrimination at work, 2010).
The four is that of Indirect Discrimination, this type of discrimination is applicable already to Race, Age, Belief, Religion, Sexual Orientation, Marriage, Civil Partnership and Sex. However, under the Equality Act, it has been extended to cover Gender Reassignment and Disability. When there is the rule, condition, policy or even an organizational practice that is applicable everybody except for the people with protected for who it would be disadvantageous, then it would be indirect discrimination.
Harassment is another type of discrimination that has been covered. It is a conduct that is unwanted and relates to the protected characteristics that are relevant, which has the effect or purpose of violation of the dignity of an individual or creating an environment which is intimidation, degrading, offensive or hostile for the individual. There can now be complain from the employee of any behavior which according to them is offensive even if the same has not been directed to them and it is not necessary for them to posses the characteristics that are relevant themselves. There is also protection of employees from harassment due to association or perception (Waughray and Dhanda, 2016).
Another type of discrimination is Third Party Harassment; this is already applicable to Sex. However now it is expected to cover Disability, Age, Race, Gender Reassignment, Sexual Orientation, Belief or Religion. There is a potential liability on the employers under the Equality Act for the employees’ harassment by third parties who are not the company’s employees, such as clients or customers.
The final type of discrimination is victimization, this occurs when there is a bad treatment of the employee because of their supporting or making a complaint or raising under the Equality Act a grievance; or because they have been suspected of doing the same. There has been the amendment of ‘victimization’ definition under the Equality Act so that it does not any longer point towards a comparator (Griffith, 2010).
It is important for the employers to ensure that all their new and existing procedures and policies are compatible with the duties which have been assigned to them under the Equality Act 2010. For example, the equal opportunities and recruitment policy of the organization must state clearly that any discrimination either indirect or direct in recruitment or employment due to any of the protected characteristics mentioned under the Act would be unlawful. These characteristics would be that of disability, age, civil partnership and marriage, gender reassignment, maternity and pregnancy, belief or religion, race, sexual orientation and sex. Where it is relevant it is necessary to include the concepts of perspective and associative discrimination in the policies. With respect to drafting and reviewing of employment contracts, there must be awareness in the employee that a clause for pay secrecy which the employee’s contract of employment contains would not been enforceable in the case where there is pay discussion that is relevant which the employee is involved in (Griffith, 2010).
It is essential for employers to ensure that there is awareness in the line managers for the requirement and need of preventing any kind of harassment of the employees. The recruitment or management staff that is involved in related procedure should be provided training with respect to the Act’s main provision, and the process of recruitment should be reviewed and where necessary amended for ensuring that it is in compliance with the provisions of the Act.
The treaties are the primary source of European Law, which are European Union’s bases. There are mainly three documents that are required to be considered, the Single European Act 1986, Treaty on European Union 1992 and also the 1997 draft Treaty of Amsterdam (Nentwich and Falkner, n.d.) and The Treaty of Rome 1957.there are European Committees Acts of 1972, 1986 and 1993 which are corresponding that ensure that as UK Law these treaties take effect (Panara and Becker, 2011). The sources of law that are secondary are the laws which have been made under these treaties, the Treaty of Rome especially. These comprise of:
Regulations, these are applicable directly and binding meaning thereby that it is not required by the national legislations to implement them in all the states that are a member, they would apply to it directly. In the case of conflict between a national law which is in existence already, it would be the regulation that shall prevail.
Directives, these are the member states requirement to change the law that is national within a period of time which has been stated so that effect could be given to the said directive. The Directives in the UK under the European Communities Act 1972 can be implemented by either delegated legislation or statute. Examples of these are the European Parliament’s Directive 95/46/EC and on October 24th, 1995 the Council’s on individuals’ protection with respect to personal data processing and such data’s free movement and also the European Parliament’s and of the Council on May 20th, 1997 Directive 97/7/EC on the consumer protection with respect to the Distance Contracts.
Court of Justice’s Decisions, to whom these are addressed these would be binding on those parties, whether they are individuals or member states. For example the judgment in the case of Interporc v Commission, T-124/96 judgment of 1998-02-06 this was in connection with the laws that govern the institutions, Commission v Spain C-92/96, judgment of 1998-02-12 which was in respect to consumers and Environment. In the case of C-249/96 Lisa Jacqueline Grant v South-West Trains Ltd (No 03/98) in which the court had opined that the equal pay rules of the treaty does not cover the discrimination that has been based on sexual orientation.
Opinions and Recommendations, these do not have any force that is binding, but merely the institution’s view is stated by it such as the commission which issues them. For example, the Advocate General Fennelly’s opinion which was delivered on February 5th, 1998 in the case of Commission of the European Communities v Council of the European Union.
The primary objective which was there for the implementation of this directive was to ensure that safety and health of women who are pregnant and working are ensured or a worker who have given birth to a baby recently or a worker who already has a baby and is still breast feeding the baby. The pregnant woman under this directive is not supposed to work in any situation or place which can be termed as dangerous (Osha.europa.eu, 2016).
The businesses in the UK were impacted due to the implementation of the new right on April 6th, 2003 which was introduced under the maternity and paternal leave (Amendment) Regulations 2002 under which a worker who is pregnant would be allowed to take a leave for 26 weeks even though they might not have worked for that long a period. If the situation wherein the woman has worked continuously for 26 weeks then in that case extra leave can be taken by her. However, she will not be paid for it. The statutory maternity pays regulations 2006 requires that all woman are allowed to take leave up to a period 52 weeks (Toshkov, 2008).
This directive is an anti-discriminatory directive which relates to religion, belief, sexual orientation, age and establishing a framework in general for ensuring that in employment there is the equal treatment which is ensured. In this directive, 21 articles have been spread across 4 chapters. In this directive, Articles 4 to 8 are very important since they deal with requirements of the occupation and accommodating persons who are disabled. There has to be the justification of treatment based on grounds of positive action, age and requirements that are minimum for the worker in the place of work. The second chapter deals with the enforcement and remedies (Eur-lex.europa.eu, 2016).
The impact that this directive has had on businesses is that the businesses now need to ensure that their work place adopts equal treatment for its employees, and there is protection fo employee’s rights as well the employer’s rights and to ensure that there is no discrimination either indirect or direct which is done.
References
Butler, D. (n.d.). Equality and anti-discrimination law.
Commission v Spain [1988]C-92/96.
Dabscheck, B. and Riley, J. (2006). Employee Protection at Common Law. Labour History, (91), p.227.
Discrimination at work. (2010). LRD.
Eur-lex.europa.eu. (2016). EUR-Lex – 32000L0078 – EN. [online] Available at: https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0078:en:HTML [Accessed 4 Aug. 2016].
Gov.uk. (2016). Discrimination: your rights – GOV.UK. [online] Available at: https://www.gov.uk/discrimination-your-rights/types-of-discrimination [Accessed 4 Aug. 2016].
Griffith, R. (2010). The Equality Act 2010: further protection against discrimination. Br J Midwifery, 18(11), pp.732-733.
Honeyball, S. (2006). Contract, Employment and the Contract of Employment. Industrial Law Journal, 35(1), pp.30-55.
Interporc v Commission [1998]T-124/96 judgment-02-06.
Legislation.gov.uk. (2016). Equality Act 2010 – Explanatory Notes. [online] Available at: https://www.legislation.gov.uk/ukpga/2010/15/notes [Accessed 4 Aug. 2016].
Levine, D. (2002). The New Employment Contract?. Employment Research, 9(1), pp.4-6.
McClelland, J. (n.d.). Rediscovering the Contract of Employment for Non-Standard Workers in the UK Common Law. SSRN Electronic Journal.
Nentwich, M. and Falkner, G. (n.d.). The Treaty of Amsterdam: Towards a New Institutional Balance.SSRN Electronic Journal.
Osha.europa.eu. (2016). Directive 92/85/EEC – pregnant workers – Safety and health at work – EU-OSHA. [online] Available at: https://osha.europa.eu/en/legislation/directives/10 [Accessed 4 Aug. 2016].
Panara, C. and Becker, A. (2011). The role of the regions in the EU governance. Berlin: Springer.
Sella, A. (2015). 2015/19 Successfully appealed pre-transfer dismissal revives employment contract retroactively, causing contract to transfer (UK). European Employment Law Cases, 0(0).
Toshkov, D. (2008). Embracing European Law: Compliance with EU Directives in Central and Eastern Europe. European Union Politics, 9(3), pp.379-402.
Wadham, J. (2010). Blackstone’s guide to the Equality Act 2010. Oxford: Oxford University Press.
Waughray, A. and Dhanda, M. (2016). Ensuring protection against caste discrimination in Britain: Should the Equality Act 2010 be extended?. International Journal of Discrimination and the Law.
Wilson & Clyde Coal Co Ltd v English [1938]AC 57.
Worksmart.org.uk. (2016). What are my employer’s common-law duties? | workSMART. [online] Available at: https://worksmart.org.uk/health-advice/health-and-safety/employee-rights/what-are-my-employers-common-law-duties [Accessed 4 Aug. 2016].
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