• The sources of the terms of the employment contract
• The common law duties of the employee
• The common law duties of the employer
Total: 33% of the marks for the report
(ii) Employers have a duty to ensure that their employment practices comply with the law. The Equality Act 2010 (EA 2010) aims to harmonise law relating to discrimination. Explain the following:
1) The scope and structure of the EA 2010
2) What are the different types of discrimination covered by the EA 2010
3) What action employers must take to ensure compliance with the EA 2010
Total: 33% of the marks for the report
(iii) (a) Identify and explain the main sources of European Union (EU) Law.
(b) Explain the following directives and how they impact on the function of businesses in the UK:
• Directive 92/85/EC
• Directive 2000/78/EC
(i) The relationship between employer and employee
The sources of the terms of the employment contract:
The main sources of the terms of the employment contract can be described as the common law, statute law and the European law that has been provided by the European Directives and also provided by the European Court of Justice Decisions. At this point is worth mentioning that all employees in UK work under an employment contract and as a result, the common law rules of contract provide the legal basis for the relationship that exists between employers and employees. Although it is not required by the law, but in most of the cases, there is a written employment contract present between the parties. In this regard, a choice has been provided to the parties of describing the law that will be applicable to such a contract (Kidner, 2009). However in this regard, there are certain mandatory employment protection rights that have been mentioned in the statutes and these are applicable to the employment contracts both, written and unwritten, regardless of the situation under the contract law. Similarly, the matters related with the liability of the employers regarding the actions of the employees are governed by the tort law and it also governs the liability of the employers for accidents taking place at the workplace. In this way, it is clear that apart from the common law, statute law also provides the basis for the terms of the employment contract. Particularly after the 1970s, there has been a significant growth in the employment protection laws in the UK. These legislations have been introduced for the purpose of supplementing the common law rules related with the terms of employment contract. Some of the major statutes that are related with employment contracts are the Equal Pay Act, 1970, Sex Discriminati 1974 on act, 1975, Health and Safety at Work Act, 1974, Employment Act, 2002, Employment Relations Act, 2004 etc.
Along with the common law and the relevant statutes, large volume of secondary legislation is present in the form of regulations that also provide a basis for the terms of employment contract. For example, in this context, there are several codes of practice that have been developed by different agencies of government for the purpose of supporting the relevant laws. In this way, although these codes of practice to not have a direct impact on the terms of employment contract however, these codes may be considered by the courts when they are deciding if in a particular case, the statutory obligations have been fulfilled by the employer, or not. At the same time, the European law also has considerable impact on the terms of the employment contract.
The common law duties of the employee:
A number of duties have been imposed on the employees in case of employment relationship. In this context, the common-law duties of the employees can be described as follows. The obligations and the duties that are owned by the employees towards an employer can be mentioned in the employment contract but the longer version this regard that the employees owe certain duties towards their employer even if they have not been mentioned in the employment contract. The duties of the employees include the duty to what could have been done by any other reasonable employee under the circumstances, the duty to act with honesty, the duty not to disrupt business and the duty to disclose wrongdoing. Although this does not include 'spent' convictions however the employee is under an obligation to disclose the wrongdoings of other employees even if this result in incriminating the employee. It is also the duty of the employees to follow and carry out the orders of their employers so long as the orders are legal. Similarly the employees are also under an obligation not to disclose the confidential information received from the employer. The common law also requires that the employees should act with reasonable care and skill. The other obligations of the employee include the duty to look after the property of the employer if the employer is using such property. The common law also imposes a duty on the employees that they should not compete in business against their employer while they are working as an employee. The common also provides that it is the duty of the employees to give to their employer, any invention that has been developed by them during their employment.
The common law duties of the employer:
While several duties have been imposed on the employees, the common law as also prescribes certain duties on part of the employers that are owed towards the employees. These duties can be implied by the law or these duties can also be present in the employment contract. The first duty of the employers, prescribed by the common law is the duty to pay the agreed amount of the employee when the employee has arrived for work and is in a position to work. It is also the common law duty of the employers to provide work to the employees. The common law also requires that the employers should follow the rules related with ensuring the health and safety of the employees. The employers also have a responsibility to provide information to the employees regarding their rights under the contract. The employers also have an obligation to provide a reasonable opportunity to the employees to have their complaints considered. Although it is not a duty of the employers to provide references to the employee, but in case a reference is being provided by the employer, it is the duty of the employed to ensure that the reference is completed with reasonable care and skill and it should be fair, true and accurate. It also needs to be mentioned that both the employees as well as the employers owe a duty of mutual trust and confidence towards each other.
(ii) Employers have a duty to ensure that their employment practices comply with the lawThe scope and structure of the EA 2010:
A defense has also been provided to the employers by the Equality Act against a claim of discrimination made by an employee if they are in a position to defend the particular policy or practice. Commonly, the workers bring a discrimination claim against the businesses related with disability discrimination, direct age discrimination or indirect discrimination. Consequently, when an employee has made a claim of discrimination, it is available to the employers to defend the claim by proving that such practice or treatment that was adopted by the employer was fortunate means of achieving a legitimate objective. But while dealing with this issue, the courts are also under an obligation to consider if this purpose represented a real need or not. In this regard, the court also has to see if the means used by the business in order to attain the objective can be described as proportionate or if any other less discriminatory means were available to the employer for achieving such a purpose. In this way if the employers can establish that a legitimate purpose was present behind such a treatment of the employee and similarly they can also prove that there was no less discriminatory method present to achieve the purpose, such discrimination is justifiable by the employer.
The scope of the Equality Act extends to the process of recruitment also. In this regard, it is required by the law that the employer should adopt prejudice free process of recruitment. They are also under an obligation to ensure that, for example no racial discrimination takes place in the process of recruitment (Wyatt, 2009). Similarly, in case of the overseas qualifications of any candidate, that is equivalent to the UK qualifications, the employers under an obligation to treat the qualifications equally (Fredman, 2011). Similarly, it is also required that the employer should ensure that the application form has been designed in such a way that it can be effortlessly read by the persons with eyesight problems. The Equality Act also mentions that it is unlawful for the employers to have a preference for younger candidates unless such preference can be justified (Bourne, 2008). The provisions of the Equality Act are also applicable to the job advertisements which include the advertisements present on a website, shop window or on a noticeboard. In all these cases, an obligation has been imposed by the Act on the employers to ensure that no impression of discrimination is given by such an advertisement (French, Mayson and Ryan, Mayson, 2008). For example, in this regard it should not be mentioned in the job advertisements that there will be a preference for male or female candidates. Doing so may result in a claim for sex discrimination unless this preference is necessary due to the peculiar needs of the work because of which, only the persons of a specific sex need to be hired.
The provisions of the Equality Act are applicable to all the employers, irrespective of the number of employees. In view of this position, the provisions of the Equality Act are applicable to all the employers (Lawson, 2011). In most of the cases, the Act is also applicable to the temporary workers and also in case of the employees who have not entered into a written employment contract (Curtin, 1990). The provisions also apply to the employees hired as apprentices, trainees or business partners. In this way, the Act has prescribed duties for all the employers, irrespective of their size (Ashianty, 2010). However there may be a difference in the way in which the duties prescribed by the equality are fulfilled by large and small employers. Therefore, normally less written policies are introduced by small businesses due to the financial constraints. In order to protect the employees, certain protected characteristics have been prescribed by the Equality Act.
iii. Explain the following directives
Directive 92/85/EEC is related with the implementation of measures for the purpose of encouraging enhancement in health and safety of pregnant workforce, the woman workers who have given birth or the woman workers were breast-feeding. In this regard, this directive can be described as the implementation of Framework Dir. 89/391/EEC that is related with the introduction of measures for the purpose of encouraging developments in the health/safety of the workers in general (Morris, Willey and Sachdev, 2002). Therefore, according to this directive, a uninterrupted maternity leave of at least 14 weeks, out of which, two weeks should be before delivery, the right to take time off for ante-natal checks without the loss of salary, in case such examination is needed during duty hours and in the same way, this directive also provides that the dismissal of an employee on the grounds of maternity has been prohibited (Kumm, 2005). At the same time, this directive also provides that under no circumstances, the pregnant workers should be made to perform the duties regarding which, a danger of exposure to the working conditions and agents that have been mentioned in Annex II has been revealed, according to section A of the Directive. In the same way, it has also been provided that the woman employees are not under an obligation to work at night during their pregnancy and for certain time after they have given birth. Therefore, it is the responsibility of the employers to transfer such woman workers to work in the day where possible otherwise, they should be excused from work or extend their maternity leave. This Directive also has a significant impact on the business in the UK. As a result, the Maternity and Parental Leave (Amendment) Regulations 2002 were implemented which presented innovative maternity leave rights for the woman. Therefore now the pregnant employees are eligible for 26 weeks of ordinary maternity leave, irrespective of the period for which they have worked for that particular employer. In case, a woman worker has worked for her employer for 26 weeks by the beginning of the 14 week before the expected week of the childbirth, such a woman worker can take additional maternity leave from the six weeks. Normally the additional maternity leave is unpaid but in some cases, the woman worker may have rights under their contract to receive pay during the additional maternity leave (Chalmers, Davies and Monti, 2010). As a result of The Statutory Maternity Pay, Social Security and Social Security Regulations 2006, the statutory merger and believe has been extended to 39 weeks and all the woman workers are entitled to take up to 52 weeks of maternity leave.
Directive 2000/78/EC provides a general framework that is related with ensuring equal treatment in occupation. This Directive prohibits any discrimination due to age, sexuality, religion, belief or disability. The meaning of the principle of equal treatment is that no direct/indirect discrimination should take place on the grounds that have been mentioned above (Peters, 2010). For the purpose of ensuring compliance with the norm of equal treatment, regarding the disabled persons, it is required that reasonable accommodation should be provided (Burca, 1992). Therefore, an obligation has been imposed on the employers to take appropriate measures for the purpose of allowing a person with disability to take part in employment.
Ashianty, S (2010) The Equality Act 2010: main concepts, International Journal of Discrimination and the Law, 11 (1/2), pp.29-42
Bourne, N., (2008) Bourne on Company Law, 4th Edition, Routledge-Cavendish
Damian Chalmers, Gareth Davies and Giorgio Monti, 2010, European Union Law Text and Materials (2nd edn, Cambridge University Press) 113
Deidre Curtin, (1990) ‘The Province of Government: Delimiting the Direct Effect of Directives in the Common Law Context’ 15 European Law Review 195
Duggan, M (2010) Equality Act 2010: a guide to the new law, London: The Law Society.
Fredman, S (2011) The Public Sector Equality Duty, Industrial Law Journal, 40 (4), pp.405-427
French, D., Mayson, S., and Ryan, C., Mayson, (2008) French & Ryan on Company Law, 25th Edition, Oxford University Press
Grainne De Burca, (1992) ‘Giving Effect to European Community Directives’, 55 Modern Law Review 215, 224
Hepple, B (2011) Equality: the new legal framework, Oxford: Hart Publishing.
Hepple, B. (2000) Equality: a New Framework: Report of the Independent Review of the Enforcement of UK Anti-discrimination Legislation. Oxford
Kidner, R. 2009, Blackstone's Statutes on Employment Law 2009-2010, OUP Oxford
Lawson, A (2011) Disability and employment in the Equality Act 2010: opportunities lost, seized and generated, Industrial Law Journal, 40 (4) pp. 359-383
Mattias Kumm, (2005) ‘The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe Before and After the Constitutional Treaty’, 11 European Law Journal 262,
Morris, H., Willey, B. and Sachdev, S. (2002) Managing in a Business Context: an HR Approach. London: Prentice Hall
Peters, M. (2010) Findings from the Survey of Employment Tribunal Applications 2008, Employment Relations Research Series, No. 107, London: Department of Business, Innovation and Skills
Selwyn N. 2008 Law of Employment, OUP Oxford
Wyatt, D. 2009 ‘Community Competence to Regulate the Internal Market’ in Michael Doyle, B, Casserley, C, Cheetham S. (2010) Equality and discrimination: the new law, Bristol: Jordan Publishing