6 and 7: legislation and disputes Flashcards
What is a contract of employement?
Assumes self-determining individuals freely entering into a contract
Contract is a contract of service
- Employee is in “personal service” of the employer
- Master-servant relationship
- Employee has degree of independence (can terminate) but remains the subordinate party
- Is asymmetric in practice since employer sets terms and has resources to enforce them
What does a contract of employment consist of?
Contract consists of:
- Express terms
- Implied terms (fact, custom, common law, statute)
Evaluation of breach is based on “reasonableness”
- What a similar employer/employee would have done
Terms and Conditions can be changed
- Consultation and agreement required
- If not agree could be grounds for “constructive dismissal”
Name the contents of the employment contract
Contents of the employment contract
- Name and address of employer, employee
- Job title
- Date employment began
- Period of employment
- Rates of pay
- Hours of work
- Holiday, sick pay and notice entitlement
- Pension rights
- Grievance, discipline procedure
What are the common law duties of the employer and employee?
Common law duties
Employer
- Provide reasonable opportunity for employee to work, and pay the agreed wages as consideration for the work performed
- Take reasonable care to ensure that employees are safe at work
- Treat all employees in a courteous and polite manner
Employee
- Be ready and willing to work for the employer
- Offer personal service to employer
- Take reasonable care in the conduct of their personal service
- Work in the employer’s time, obey reasonable orders and undertake not to deliberately disrupt the employer’s business
- Not disclose any trade secrets to the employer’s competitors
What do rights at work depend on?
Rights at work will depend on:
- Statutory rights and
- Contract of employment
Statutory rights are legal rights based on laws passed on by parliament
The contract of employment cannot take away rights employees have by law
Give some examples of statutory rights
Examples of statutory rights
Day 1
Equal pay
No discrimination
Maternity rights
Minimum wage
Working time restrictions
Paid holiday
No unlawful deductions
After service
Written statement of T&C
Notice period
Written reason for dismissal (2y)
Compensation for unfair dismissal (2y)
Lay-off pay (1m)
Give reasons for termination of employment
Fair
- Employee conduct
- Job redundancy
- Capability, competence, qualifications
- Statutory Bar
Summary dismissal (without notice)
- Theft, fraud, violence
Unfair dismissal
Wrongful dismissal
- (e.g. breach of contract notice period)
Constructive dismissal
- (e.g. racial or sexual harassment)
Redundancy
- Minimum compensation, statutory procedure
Give some examples of Acts to deal with discrimination
Discrimination at work
- Equal pay act
- Sex discrimination act
- Race relations Act
- Disability Discrimination
- Race relations
- Employment Equality
- Gender equality duty
- EQUALITY ACT 2010
What are the different types of discrimination
Direct discrimination
- Less favourable treatment
- E.g. denying a woman a promotion on the grounds that she is a woman, a married/single woman, or is pregnant/has children
Discrimination by association
- With a person possessing a protected characteristic
- E.g. denying someone a promotion because her mother has had a stroke (and is now disabled)
Perception discrimination
- Other think an individual possesses a protected characteristic
- E.g. not allowing someone to represent their company at a conference because they look too young (although they are much older)
Indirect discrimination
- Disadvantaged by a rule which applies to everyone
- E.g. height requirements, dress codes, or length of service requirements combined with an upper age limit which may prevent women with children from having sufficient length of service to apply
Harassment
- Violating dignity, intimidating, hostile, degrading, offensive environment
Third Party Harassment
- Harassment of employees by non-employees
Victimisation
Bad treatment due to having made or supported a claim
Give some examples of disability actions to be considered
- Making adjustments to premises
- Allocating some of the disabled person’s duties to another person
- Transferring him to fill an existing vacancy
- Altering his working hours
- Allowing him to be absent during working hours for treatment
- Training
- Providing a reader or interpreter
Which factors must be taken into account before making steps to help a disabled person in the workplace?
Disability – factors to be taken into account
- The extent to which taking the step would prevent the effect in question
- The extent to which it is practicable for the employer to take the step
- The financial and other costs that would be incurred
- Extent of employers resources and time
What are the key points of Health and Safety work act
An Act to make further provision for securing the
- health, safety and welfare of persons at work,
- for protecting others against risks to health or safety
- For controlling and preventing the unlawful acquisition, possession and use of dangerous substances,
- and for controlling certain emissions into the atmosphere;
- To amend the law relating to building regulations
What are the duties of HASAWA
- Employer for employees
- Employer for people affected by his activities
- Designers, manufacturers, importers and suppliers for anyone using or maintain their products
- Every employee for themselves and anyone affected by their work
- Everyone with respect to damage or misuse of H&S equipment
- Employers not to charge any employee in respect of H&S provision
What are some important points about implementation of HASAWA?
HASAWA – Implementation
Criminal law
- Failure to comply can lead to imprisonment
Provides a critical interface with EU law on H&S
- EU regulations implemented under HASAWA
Inspector issue:
- Improvement notices
- Prohibition notices
What is the code of practice for Dispute Resolution
Principle – resolve at lowest level of formality
- Establish the facts of the case
- Inform the employer/employee of the problem
- Hold a meeting to discuss the problem
- Allow the employee to be accompanied
- Decide on appropriate action
- Provide employees with an opportunity to appeal
- Where disciplinary and grievance procedures overlap suspend disciplinary or hold concurrently
What are the options for dispute resolution
Mediation
Conciliation
Arbitration
What are the differences between internal and external mediators?
Internal
Knows and understands culture
Potentially less briefing required
Little cost
May not be perceived as impartial
May have baggage
Experience level may be low
External
Comes with little knowledge of organisation
May be a more experienced mediator
Likely to gain trust of parties more readily
Able to provide the organisation with fresh view
Charges for services
