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October 21, 2013

Paper on Employment Law

Employment Law 5ELW

 

Part 1

The Objectives and Aims of Employment Regulation

The main objective of the labour laws act like a force which countervail to neutralize the forces of inequality of the bargaining powers which are found to be inherent and they should be intrinsic in the relationship of the employee and employer. For improving productivity and skills, it can provide disincentive and incentives; it can also affect the movement of labour both internationally and nationally and can cover issues, like, bullying, privacy, unfair discrimination, child labour and slavery. This is the reason that the labour laws are recognised as the potential force for counteracting the inequality (Davies and Freedland, 1983).
In accordance to the CIPD, the employment law of the United Kingdom is categorised as private or civil law. In a civil court, for some other remedy or compensation it is enforced as a result of one party- the respondent who is sued by another party – the claimant (Bruyere & Et.al, 2004, p. 28). To allege the respondent who is the former employer or the employer and who has caused and done some kind of detriment in contravention of the law, the court system is used by the claimant who is a failed job applicant, an existing worker or employee or who is normally a former worker or employee.
The employment regulations are the issues which are formulated purely for making the organisations conduct compliance with the laws. Through making the organisations at a level where all of its conducts are following the rules and regulation organised by a legislative body, the organisation can make itself earning much more. If the strategy of moving-up market i.e. production of higher value services or goods is adopted by the organisation, it can enjoy the benefits of employment regulation. These benefits can be in term of encouragement, such as the ‘wake-up call’, which is as part of the conscious modernisation of the organisation of its employment relations, the changing of policy on work-life balance issues.
The organisation moving with such strategy will be able to main consistent regulations. An example include an organization which felt brought it business benefits and felt the need of a flexible approach to family need and even though the organisational behaviour was not directly affected by the legislation yet it saw the positive light of legislation in this area. It is usually perceived that the employment legislation is a source of increasing costs for the firm and they also add administrative burden on the firm. All of these issues might affect the firms which are not working on a highly large scale and are fighting on the day to day basis for their economic vulnerability.
Laws also put some truly positive impacts as well. As they are a good source for stimulating an improved disciplinary process and also a better working experiences, by making the environment balanced (Edwards et al, 2003). While remaining fair for individuals, by allowing change to happen in an economically efficient and flexible way, it can make change easier. It can allow grown-up conversations between the staff and employers and by removing inflexible requirements and processes it can remove the government out of the relationships between the staff and the employer.

Role Played By the Tribunal and Courts System

In accordance to CIPD, employment tribunals are designed to deal with many claims that are brought by employees against the employers related to their termination or employment. The statute law and the law of contract both govern the employment relationship (Colling, 2004, pp. 555). The ordinary civil courts, like, the Sheriff Court in Scotland, the Country or High Court in Northern Ireland, Wales and England usually deals with the contractual disputes. The employment tribunals can only enforce the majority of the statutory rights. To consider some contractual aspects as well, jurisdiction are considered by tribunals.
Claims related to deduction from wages, equal pay claims, discrimination claims – age, sexual orientation, belief or religion, disability, sex and race, wrongful dismissal claims and unfair dismissal claims are examples of disputes that are heard by employment tribunals. The tribunals were actually been set for dealing with the complaints of the training levy in 1964, and their authority was completed to the unfair discharges in the year 1972. Today they are equipped with a huge amount of employment rights, which is inclusive of equality law, laws regarding equal pays, maternity rights and parental rights, trade union membership rights and also the unlawful deductions in pay. In the year 1998, this body was renamed as employment tribunals, and now they are operating under the Act of 1996 and constitutional regulations which were amended in 2004 (Mylawchamber, 2012).

The Cases that are not heard by Employment Tribunals

The claims concerning the breach of a contract which in restraint of trade are a covenant, the breach of a term imposing confidence or an obligation, the breach of term related to intellectual property inclusive of trademarks, patents, registered designs, design rights, moral rights, rights in performances, and copyright, the breach of a term for its employee requiring to provide living accommodation by the employer and personal injury are not heard by the Employment Tribunal.

The Role of Civil Courts

Under different rules, the operations of civil courts are conducted and in accordance to the type of claim brought the burden of proof varies, however, during the course of proceedings it is possible for the burden of proof to switch twice, when an unfair dismissal case comes before a tribunal. The cases in which by unlawfully employing someone outside from the EU, the employer has breached immigration regulations or when an employer is accused of failing to comply with safety and health regulations are heard by the civil courts.

The Role of EAT

When dealing with new cases the tribunals have to take the earlier decision of the EAT into account. The EAT hears the appeals against tribunal decisions. The EAT will not hear any appeal from the Employment Tribunal. Appeals based on two situations are heard by the EAT, when a union is refused to be listed by Certification Officer and when the appeal is concerned with the decision of the CO (Gilbert, 2005, pp. 7). When looking at new cases, own previous decision are not required to be followed by the EAT. Appeals from the decisions of the Central Arbitration Committee arising from the Information and Consultation of Employees Regulations 2004 are also heard by the EAT.

The Role of European Court of Justice or Supreme Court for Appeals

Twenty seven judges are staffed in the European Court, and a member state of the European Union is represented by each one of them. Advocates General provide assistance to them. For a ruling if it involves a question of European law, the European Court can be referred for a case by any tribunal or national court. The national employment law is greatly impacted by the decisions of the ECJ. When the general public importance in the point of law is disputed then a further appeal to the Supreme Court can be made. Not just the particular parties to the case, but the principles must be sufficiently significant to have implications for many employees and employers. There are rarely more than 6 or 7 employment-related cases that are heard by the Supreme Court yearly.

Cases Settlement Before and During Formal Legal Procedures

The Need to try to Resolve Disputes through Procedures and Policies

The rules of the employment appeal tribunal govern the rules for appeals. Several types of hearing are allowed by the employment tribunals’ rules of procedure, they are review hearing that re-consider a judgment, a full hearing that determine remedy and/or liability, a pre-hearing review that determine the entitlement of a part to defend or bring proceedings, and a case management discussion that determine the directions for a case and is used to clarify issues. The case can be dismissed before proceeding to a hearing if the claim is determined at a pre-hearing review. Subject to a review or an appeal, the matter is determined, once in respect of the particular matter a judgment is issued, and it cannot be re-opened.

The Use of Settlement/Compromise Agreements

The employees and employers may attempt to resolve matter, when face with an employment issues by the use of a compromise agreement, the use of a private arbitrator, the use of the pre-claim conciliation service offered by ACAS or by discussing between themselves only. For the dispute between the employee and the employer not to become public, a confidentiality clause is maintained by the compromise agreements.

 

The Role of ACAS in Helping Resolve Disputes

Workplace disputes that are likely to become tribunals’ claims and cannot be resolved internally, a free pre-claim conciliation service is provided to them by the independent conciliation service known as ACAS. Once claims have been started they are still conciliated by ACAS (Sisson & Taylor, 2006, pp. 25). Both parties in the dispute are contracted by the ACAS officer who explores the possibilities of settling the claim before it is proceeded to a full tribunal hearing. To broker a settlement, the parties are contacted by ACAS through telephone. Cases concerned with flexible working requests or unfair dismissal can also use ACAS as it also operates as an alternative dispute resolution procedure. Rather than an employment tribunal, the case is decided and considered by an ACAS arbitrator if both parties agree under this procedure.

Part 2

Principles of Discrimination Law in Recruitment, Selection and Employment

The Purpose of the Equality Act 2010 and its Nine Protected Characteristics

To make easy use, a number of existing laws are brought together into one place by the Equality Act 2010. The unlawful behaviour and the personal characteristics protected by the law are set out. The purpose of the Act is to help Britain in performing well in business, in improving its public services and in becoming a fairer society by harmonising protection and simplifying legislation for all the covered characteristics (Hepple, 2010, pp. 11). The protected characteristics under the Act are sexual orientation, sex, belief and religion, race, maternity and pregnancy, civil and marriage partnership, gender reassignment, disability and age. Breaches of the law might be resulted if the organisation has failed to ensure the fair treatment of the job applicants. The set of principles are inclusive of so many norms which are bifurcated on various different stages mentioned below:

Recruitment Stage

At this stage, the various methods are applied for the sake of excluding the entire applicants into groups of successful and unsuccessful candidates. This stage is one of the most primary stages in the process. At this stage the organisation the useful applicants are shortlisted which make it possible for the department to continue the process by taking this particular chunk into account. In accordance to CIPD, in recruitment avoiding the use of age limits and to avoid any occurring unintentional discrimination the criteria used for assessment must be objective are the examples how in the recruitment process the discrimination can be avoided.

Screening Stage

At this stage, the screening criteria and tests are not only related to job criteria as the job criteria are considered to be indirectly discriminatory as in compare to someone without a protected characteristic, it can have a worse impact on someone with it. This stage makes the HR department judge the candidates in a more effective manner and further classify the candidates in accordance to the potential they have for contributing in the organisation.

Selection Stage

The discrimination can occur at the selection stage as the discriminatory selection criteria can be applied indirectly by the staff that is responsible for the selection of employees or to make reasonable adjustments subjected to the DDA duty apply the inconsistent selection criteria between the candidates. In the process of selection stage, discrimination is expressly outlawed by the laws prohibiting discrimination on grounds of religion, sexual orientation, disability, race and sex. It is unlawful to discriminate in deliberately omitting or refusing to offer employment, in the terms on which employment is offered and in the arrangements made for deciding whom the employment must be offered.

Employment stage

The discrimination can occur at the employment stage if the offered conditions and terms are discriminated on grounds that are unlawful between different groups of employees or different individuals. Some sort of discrimination which are found to be relevant for the recruitment and selection processes having the name of direct discrimination which is including associative and perceptive. Less favourable treatment of individual due to the incorrect or correct perception regarding their particular belonging to an age group is known as perceptive discrimination.
Less favourable treatment of individual due to their association to a particular age group is known as associative discrimination. Direct discrimination is said to be occurred when membership of any group is been considered to be the reason of any particular decision which has been taken about the person. Indirect discrimination on the other hand is considered to be occurred when any particular condition applied on a general basis to an entire group (www.brookes.ac.uk). To prohibit discrimination in employment based on a typical work patterns, two measures have been introduced for who are considered as non-permanent and permanent employees.
Non-full-time permanent jobs are far more likely to be done by women in compare to men, to remedy the pay between women and men the fixed-term employee regulations and the part-time workers regulation were partly introduced.

Direct Discrimination

Direct Discrimination is when a less favourable treatment of any particular person is compared with some other person due to some particular protected characteristic, their relationship with any other person who has some protected characteristic or due to the fact that they are perceived for have some protected characteristic. Direct discrimination cannot be justified, whatever the employer’s motive. Following are some examples of the direct discrimination:
1. Not considering someone due to the fact that the individual is perceived as a homosexual (no matter that they are actually homosexuals or not).
2. Not considering some disabled person who is although meeting the selection criteria and not looking at whether reasonable adjustments can be made.
3. Not considering any person due to the fact that they have to care for some disabled child.
4. Not considering someone because of they are looking too young for the position being offered.

Source Case Examples

Rejecting of all women candidates for positions traditionally held by man, such as, rather than early career researchers advertising for young researchers or security.

Indirect Discrimination

Indirect Discrimination is where a practice, provision, requirement, rule or working condition are giving the people some particular protected characteristic at the cost of a disadvantage compared with others who are not sharing that characteristic and applying the particular practice, provision or criterion cannot be objectively justified. The examples of the indirect discrimination are:
1. Specifying some applicants must be clean shaven, by not keeping the fact in mind that this may trouble some religious groups.
2. Using a specific qualification strictly regardless of the fact that someone has relevant experience but not the particular qualification
3. Specifying some height, weight or level of strength requirements, this might be done for excluding the female candidates desperately from the race. This is only for jobs where there is no need of the particular characteristic 4. Asking for some specific number of experiences which is done for eliminating younger people out, but have not had the opportunity to demonstrate them over an extended period.

Source Case Examples

An example will be the members of a particular race or religion or women, and strength, height or weight requirements in which the ability to competently perform the job in question are not related or that discriminate against women. Unfair discrimination can be further divided into direct and indirect discrimination. Discrimination in recruitment and selection is considered to be certainly unfair at the time of taking decisions which are based on some irrelevant requirements. Applicants are protected statutorily in opposition to discrimination on the various set of grounds like the ages, genders, disability, marital status or civil partnership, maternity, racial issues and religious belief, sex orientation and so on. The others are the indirect discrimination these are the discriminations which are arising from disabilities and breakdown for making reasonable adjustments (www.brookes.ac.uk).

Contracts of Employment

The Establishment of Verbal and Written Agreements during the Selection and the Recruitment Process

The candidate must be advised in writing that their conditional offer of employment will be withdrawn in case of unsatisfactory outcome, and their offer of employment is conditional on satisfactory checks. PPDRS must be sought in respect of internal candidates as it will contain that information which is indirectly relevant to the selection process, and for the purpose of selection and recruitment the PPDRs are not written.

The Documentation within the Selection and the Recruitment Process

The decision of the panel must be written by the panel Chair after the interviews inclusive of the reasons for rejection or selection. If the selection decision is challenged or if feedback is requested to allow panel members to recall their decisions, the notes need to be sufficiently detailed. The assessment or selection form can be asked to seek by the candidate.

Part 6

Requirements of Unfair Dismissal Law

The Need to Follow Procedure and Policy

Before an employment tribunal the claims of unfair dismissal can only be brought, and for claims of unfair dismissal there are highly short and strict time limits. Continuing the last day of employment as the 1st day of the 3 month period, within 3 months of the last day of employment, a claim must normally be brought within. Using the prescribed from ET1 which is obtained through the employment Tribunals Service, the claim can be lodged. Either without or with representation, such claims must be brought by the employees themselves. In employment tribunal preceding the employees are represented by certain other representatives or solicitors which are regulated by the Ministry of Justice. Conciliation services might be called upon, and independent arbitrations and claims of the employees might be supported by trade unions.

The Need to Follow the ACAS Code of Practice

A dismissal is basically occurred when any employer terminates the contract with the employee. This is done just as formal penalizing or disciplinary action which must only be necessary if all of the informal methods are failed for resolving the problem, so at that time the dismissal must be the considered as the last resort in terms of the authorization. The principles to handle the disciplinary situations, up to and also by including dismissals are been set in Discipline and complaint at work. At the same time as the ACAS code of Practice 1 is not legally enforceable in the employment tribunals which will be taking its provisions into account when the relevant case is being considered.
Before the employees can make a complaint to an employment tribunal they will need to qualify most circumstances. The right not to be unfairly dismissed is acquired by the employees. After sixth April of the year of 2012 or on 2 years for employee starting employment and before sixth April of the year of 2012 at continuous service for employees of 1 year in employment. However, in relation to automatically unfair grounds there is no length of service requirement.

The Need for an Investigation

Notes being given and kept to the employee are resulted from investigations. The employee will be entitles to know his accusations and the accusers sometimes, and uncorroborated anonymous informants cannot be consisted by investigations.

The Ability of the Individual to Provide Responses to the Allegation

The conduct of the employer is supposed to be outside the band of reasonable responses of any reasonable employer to be unreasonable thought. To prove that their alleged reason was the main the burden shifts back to the employer if a competing reason can be proved by the employee.

Is it a Capability or a Conduct Issue?

Commonly lack of talent or exams the ability which can be affected by mental, physical, health or aptitude quality is known as capability, it refers that the employee is not capable of doing the job. Through misbehaviour, carelessness, or laziness the failure, the failure to use talent, willingness is mainly about conduct.

Scope of the Right for Employees

The employers are responsible for making it sure that all the health and safety related issues in the work place are well managed. They must look that clear statement of what your responsibilities are must be stated in the form of the job description. Another factor is that the employer must also be having a formal procedure in place at the time of for dealing with any sort of grievances, disciplinary matters or any sort of sickness absence.
They also know that the employee has a right not to be distinguished on the basis of some factors which are related to their personal characteristics or issues like racism etc.



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