How effective is UK employment law?
How effective is UK employment law in achieving a balance between employment protection rights for workers and the needs of business?
In order to evaluate the effectiveness and impact of employment regulation in achieving a balance between providing protection to workers and the needs of business, one needs to look at the different aspects of the employment law.
EMPLOYEES’ RIGHTS
Employees have statutory protection against being unfairly or constructively dismissed. If an employer acts unreasonably so as to force an employee to resign, that employee may well have a case of constructive dismissal, however, the act of resignation must be the only possible action left having exhausted all others. Ultimatums such as 'resign or be dismissed' which result in resignation are an example of constructive dismissal. An actual dismissal or act to cause resignation must have taken place for a claim to be made.
With the exception of cases of automatic unfair dismissal, an employee must have a minimum of one years continuous service and be under either the contractual retirement age or under 65 years old to make a claim. There may be a claim for breach of contract in these circumstances.
It is unlawful to discriminate against anyone on the grounds of their sex, race, disability or marital status in recruitment, promotion and access to benefits during employment and dismissal. The Sex Discrimination Act 1975 (“SDA”) and Equal Pay Act 1970 (“EPA”) are complementary as EPA deals with pay, whilst SDA deals with non-contractual matters. Sexual harassment will count as "discrimination" for the purposes of the Sex Discrimination Act if an employee is treated less favourably than others on the grounds of sex and will normally be unlawful under SDA .
Every year, there are around 20,000 cases where discrimination is the main grievance by the employee. The Court of Appeal previously had few test cases which involved alleged race and sex discrimination in the workplace. These cases involved a university administrator who heard the word ‘paki’ whilst in the workplace; a female work assistant who was sacked after rumours of an affair with the office manager; and a black careers advisor who claimed that her three white managers had assessed her unfairly and disciplined her.
“It was held in the recent case cited in the Article published by Steel Solicitors Forshaw and others v Ashcraft Ltd (2005) the EAT found the Respondent employer to have unfairly dismissed three employees who refused to sign new terms and conditions containing a nationwide restraint of trade clause limiting competition with the employer for 12 months after leaving the company.
The new terms had been offered to the three individuals after Ashcraft learned of their intention to leave and join a rival business. Having refused to sign the new terms the employees were dismissed with no opportunity to appeal given.
The earlier Tribunal found that although the covenant was unduly restrictive, the three had not been unfairly dismissed and rejected their claims, holding that dismissal was within the reasonable range of responses open to the employer in the circumstances.
On appeal, the EAT reversed the earlier decision. In finding that the restraint was invalid as being unduly onerous (far in excess of what was required to protect the legitimate business interest of Ashcraft), the EAT considered it unreasonable to ask the employees to sign such a restriction which purported to impose "an unreasonable fetter on their future trading activities". It was not, they said, up to the employees to come up with any counter-proposal but for Ashcraft to have put forward a reasonable restriction in the first place. ”
In a land mark decision in Rhys-Harper v Relaxation Group an anomaly in law was cleared to ensure employers would not discriminate against employees even after their employment contract has ended. The case concerned provision of references either non provision or adverse references were provided. The House of Lords pre empting changes in European law. It covers areas such as provision of references, return of personal property and conduct of internal procedures for grievances.
There are strict procedures to be followed by the employer when there is a Redundancy situation starting from actual selection of employees to redundancy pay to avoid any unfair dismissal claims from employees.
EMPLOYERS’ PROTECTION
There are five potentially fair reasons that an employee can be dismissed for. To just allocate a 'fair' reason to a dismissal is not enough to make it fair. A proper procedure must be in place to deal with dismissals to ensure that, before the dismissal takes place, the matter is correctly investigated, the employee is given a chance to state their version, the disciplinary procedure is followed etc.
An employee must have the skill, aptitude and physical and mental ability to perform their job correctly. Once identified that this is not the case the employee must be made aware of their shortcomings and that they are fully discussed with them, they must also be given time and any appropriate training to improve with full monitoring of the ongoing situation. Finally, if all else fails, the implementation of the warnings procedure. By following this route a potentially fair dismissal can take place. Dismissal may also take place as a result of ill health.
Under ERA 1996 section 98, the burden of proof lies with the employer to show a defence under certain headings as the reason or principal reason for dismissal . Under (s.98 (2) (b)), which outlines conduct. Conduct covers a wide range of activities and once such activity is theft. There are no requirements that state that the misdemeanor must have been great.
Just being in receipt of certain information does not mean it is enough to bring about a duty of confidentiality. The person who receives the information needs to be aware of the fact that the information is confidential and also needs to accept it as being confidential.
Employees are caught by this duty as employers do not want them to disclose information to trade rivals. If information is passed on to third parties then those parties may also be bound by the duty of confidentiality.
An employee can be bound by duty of confidentiality if an express term is included in the employment contract and implied terms which can supplement or be taken in place of the express terms.
A restraint clause attempts to stop an employee from setting up a rival business, working for a rival company or implore trade connections for a set period of time and within a set distance, once the employee has finished employment with the company.
The employer must however show that the restraint clause is reasonable and that the employer is looking to protect a legitimate interest. Once both of these factors have been looked at, then the wordings of the clause are analysed.
CONCLUSION
The rights of employees are protected adequately however; there are still some gaps which are open for some unscrupulous employers to exploit such as Sexual Harassment at work place. The UK or EU/EC legislation does not specifically deal with sexual harassment at the work place. A specific employment law protection comes from the Sex Discrimination Act 1975 and the EC Equal Treatment Directive 76/207 in addition to Criminal and Common law.
Sexual Harassment at work was not specifically dealt with by UK or EU/EC legislation. On the 18th April 2002 the EU council and parliament accepted a draft new directive which will require member states to specifically outlaw sexual harassment and which inserts a specific definition of sexual harassment into the 1976 Equal Treatment Directive 76/207/EEC. The final date for implementation by member states is 5th October 2005.
The important difference between direct and indirect discrimination is that in the latter it is possible for the employer to argue that an otherwise discriminatory act is justified by the requirements of the job which cannot be argued in direct discrimination such as sexual harassment. A victimisation occurs when an employee receives less favourable treatment because of the action that person has taken action under SDA or Race Relations Act.
Faccenda Chicken v Fowler , in this case Fowler was the manager of sales for Faccenda Chicken. Whilst in this position, he created a system of selling from refrigerated vans, fresh chickens. Once this had been established, he promptly resigned and started up a rival business in direct competition with Faccenda Chicken. In addition to this he took a few of the other Faccenda Chicken employee’s with him. Allegations followed that Fowler and these employees had revealed and utilised information regarding the sales from Faccenda Chicken. The information was regarding transport routes to customers as well as their addresses, pricing and times for delivery. An injunction was sought by Faccenda Chicken in an attempt to prevent further disclosure of this information.
The high court refused the injunction on the grounds that the information was gained by the employee during his course of employment and that it should be confidential whilst still in employment with that company but upon leaving employment the knowledge can be used by that employee. The information used by Fowler was not under any restraint of trade or confidentiality clause in his contract and so as the information was not protected, it was held that no injunction could be made by Faccenda Chicken.
The above analysis shows that although it seems at first glance as if Employees’ rights are protected more closely than the Employers but there are many ways employers can protect themselves and their businesses by drafting a comprehensive document covering all aspects, acting reasonably and following procedures.
An employer who has to make its employee redundant can justify if it is for Economical, Technological or Other reason relating to the business. Thus I believe that there is almost a balance but it is still favouring the employer in certain situations.
BIBILIOGRAPHY
1. Cases & Materials on Employment Law by Richard Painter, Ann Holmes & Stephen Migdal, Blackstone Press Limited, published in 1995
2. Employment Law Legal Practice Course by James Holland & Stuart Burnett 1999-2000 series
3 Steels, Solicitors employment law Articles and HRM web site employment articles.
4 Selwyn’ Law of Employment 10th Edition, Butterworths
5 Employment Law by Deborah Lockton fourth edition by Palgrave law masters
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