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Overview of Employment Laws

 

 

The employment laws evolved in 1802 through the adoption of the Factory Acts and the Master Servant Act 1832 (Ewing, McColgan and Collins, 2005). These were the first laws that regulated labour relations and employment relations until 1950s. These laws were primarily based upon the Law of Contract (Ewing, McColgan and Collins, 2005). Significantly thereafter, the spread and expansion of the “equality movement” in the European Union, the three major sources of law were developed and identified as: Acts of Parliament called Statutes, Statutory Regulations which are made by a Secretary of State under the Act of Parliament, and Case law or legal precedents. These legal precedents are pronouncements and decisions of the tribunals and courts on matters and issues brought before them for adjudication.

 

The first notable law based on the equality movement was the Equal Pay Act 1970 which came into effect only in 1972 (Ewing, McColgan and Collins, 2005). This was part of the unified effort to bring women at an equal footing with men in employment. The Employment Rights Act 1996 was introduced to regulate a more comprehensive area of employment conditions.

 

A major development was achieved in the area of employment when the Labour Government was installed in 1997. Better labour laws were adopted in implemented in terms of maternity and paternity rights, the institution of the minimum wage and working time regulations. These directives established the number of hours for work, rest breaks, and other benefits such as annual leave pay (Ewing, McColgan and Collins, 2005). Antidiscrimination laws were also set in place to ensure protection from discrimination in employment based on gender, sexual orientation, transgender discrimination, gender reassignment, age, religion or belief, and race. Employment Act 2002 includes discrimination on grounds of pregnancy or maternity (British Employment Law web site).[1]

 

Under the Employment Rights Act of 1996, specifically Section 95(1), it provides three (3) instances constituting dismissal. These are:

‘1) the employer terminates the employee’s employment contract with or without notice;

2) a time-limited contract expires and is not renewed

3) by the employee with or without notice such as may be interpreted from the employer’s conduct when the he (employer) breaches the contract of employment, this grants the employee the authority to terminate the contract without notice, otherwise known as “constructive dismissal.” ’

The law provides the two kinds of dismissal, i.e. fair and unfair. Dismissal is said to be “fair” when the employer justifies this with one or more valid and fair reasons. The law enumerates the reasons which it recognizes as valid and fair as the following[2]:

‘1) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

2) relates to the conduct of the employee,

3) is retirement of the employee, (effective 1st October 2006

4) is that the employee was redundant,

5) some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held,

6) the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.’

On the other hand, an employee who feels that he has been “unfairly dismissed” may raise such issue before the employment tribunals. The unfairly dismissed employee may be awarded by the tribunal his remuneration or compensation to which he is entitled to, in addition to such other further compensation for pecuniary or financial loss which he sustained by reason of the unjustified dismissal. [3]

Issues to be Resolved

The relevant and pertinent issues of the given hypothetical case scenario are enumerated below and will be discussed and analysed separately for the purpose of giving a succinct and sound legal advice.

First issue:  Whether or not Bianca is entitled to receive her pay rise of 3% during her maternity leave which was not reflected in her maternity pay;

Second issue:  Whether or not the denial by the Management of her written request for working half time based on the following reasons a) that Management felt that it would be too difficult to rearrange her work, particularly should a trial be listed on a day when she was not in and, b) her job could only be done by someone who worked full time, is valid.

Third issue:   Whether or not the dismissal based on constant tardiness and the one day of absence due to an emergency/accident that happened to her new born is valid and lawful.

 

Discussion and Analyses

 

The 3 % Pay Rise not Reflected in the Maternity Pay

Bianca is entitled to the 3% pay rise/increase which was not reflected in her maternity pay.  According to the Department of Work and Pensions, legislation has not defined what pay rise means. It is arrived at by and between the woman and her employer and in case of disagreement, the issues pertaining to this shall be resolved based on the procedure established by Her Majesty’s Revenue and Customs (HMRC). Be that as it may, this percentage increase is supposed to be taken into consideration and applied to all pay elements. It is relevant in the computation of the average weekly earnings and in the standard maternity pay (SMP).[4] The earnings calculations have been amended to comply and to implement the European Court of Justice (ECJ) judgement in the case of Alabaster v WoolwichPlc & Anor [2002] EWCA Civ 211 )26 February 2002).  In the recent case of Alabaster, the ECJ had the opportunity to clarify its judgement in the case of Gillespie[5] finding that,

“ . . . any pay rise awarded between the beginning of the period covered by the reference pay [i.e., the relevant period for calculating SMP] and the end of the maternity leave must be included in the elements of pay taken into account in calculating the amount of such pay. This requirement is not limited to cases where the pay rise is backdated to the period covered by the reference pay.”

 

Taking pay rises into consideration is not limited to cases of backdated pay rises. The employers would have to recalculate SMP entitlement taking into account pay rises by applying to the whole or any part of the period from the relevant period to the end of the maternity leave period. This shall be done by applying the pay rise to the earnings in the relevant period which failed to reflect that pay rise and pay arrears of the SMP.[6]

 

Thus, in the instant case, DSS has to recalculate the standard maternity pay of Bianca, taking into account the 3% pay increase to which she is entitled to since 01 June 2005.

 

 

 

Denial of the Written Request for Working Half Time

The Employment Rights Act 1996, as amended, specifically Part VIIIA, Section 80F, grants to the employee a statutory right to request for contract variation. The pertinent provision is hereunder quoted verbatim:

“1) A qualifying employee may apply to his employer for a change in his terms and conditions of employment if-

(a) the change relates to

(i) the hours he is required to work,

(ii) the times when he is required to work,

(iii) where, as between his home and a place of business of his employer, he is required to work, or xxx

(b) his purpose in applying for the change is to enable him to care for someone who, at the time of application, is-

(i) a child who has not reached the prescribed age or falls within a prescribed description and in respect of whom (in either case) the employee satisfies prescribed conditions as to relationship  . . .”[7]

 

Before the amendment of the Employment Rights Act 1996 by the Employment Relations Act 2004, the employee who returns from maternity leave is entitled to request for part time work. If the employee left for full time work, then this should be discussed with her employer as she does not have an automatic right to demand part time basis to do her job. By virtue of the amendment which took effect in April 2003, the employee also now have the right to request for flexible working hours and not just part time,[8] as specified in the above quoted provisions.

The Government launched its Work Life Balance Campaign last March 2000 where flexible working options were presented to allow employees to balance the other areas of their lives (CMB. Org web site).[9] These options established the flexibility in the arrangement of hours, i.e. flexi-time,[10] term time working,[11] compressed hours working/staggered hours,[12] and self rostering/shift swapping.[13] Options for reduced working hours are also provided such as part time work/voluntary reduced working time (V-time)[14] and job sharing.[15]

 

Applying the foregoing legal principles and provisions to the instant case, Bianca has the statutory right to request for contract variation under Section 80F, Part VIIIA of the Employment Rights Act 1996, as amended. The request to change the terms and conditions of the contract relates to change in the hours and times she is required to work.  Moreover her written request or application must be in conformity with the requirements of Section 80F (2) of the Employment Rights Act 1996, as amended. For instance, the application must state that it is such; must specify the change applied for and the date on which it is proposed the change should become effective; it should explain what effect, if any, Bianca thinks making the change applied for would have on DSS and how, in her opinion, any such effect might be dealt with, and to explain how the employee meets, in respect of her child, the conditions as to relationship mentioned under the law.  And considering that she already has filed her application, she cannot do so again to DSS before the end of the period of twelve months beginning with the date on which the previous application was made.[16]

 

Albeit, Bianca is granted the statutory right to apply for working half time; the grant of such request is not an automatic right. The employer, therefore, has the right to grant or refuse such application. However, in the case of refusal, the law mandates that it must be based on one or more grounds specified under Section 80G (b).[17]

 

In the present case, DSS’s refusal was based on the following reasons: a) that Management felt that it would be too difficult to rearrange her work, particularly should a trial be listed on a day when she was not in and, b) her job could only be done by someone who worked full time.  Clearly, the refusal was based on a mere opinion, ‘feeling’ and therefore subjective. Bianca may take issue before the Employment Tribunal for unlawful indirect sex discrimination. In the case of Barry v. Midland Bank Plc [1999] UKHL 38; [1999] 1 WLR 1465; [1999] 3 All ER 974 (22nd July, 1999),[18] Lord Nicholls of Birkenhead used the expression “objective justification”. According to him, in the determination of the issue whether the appellants can show their decisions to be justifiable irrespective of the sex of the person to whom they were applied (section 1(2)(b)(ii), there must be an objective justification.[19]

 

In the case of Bianca, there was failure, on the part of management to even venture in trying the many ways to adjust, re-organize work among existing staff, recruit additional staff, etc. DSS should be able to justify the denial based on good business reasons. Thereafter, a meeting must be set within 28 days to discuss the denial, and an appeal may be taken before another manager as provided for by the Regulations.[20] However, in the present case, no such appeal can be made as Bianca had already been dismissed.

 

On the appeal of the case Hardys & Hansons Plc v Lax [2005] EWCA Civ 846 Case No: A2/2004/1847[21], the appeal court dismissed the appeal of employer, Hardys & Hansons and affirmed the decision of the Employment Tribunal (ET) in finding for the claimant Lax. Claimant is a full time female employee, who due to child rearing responsibilities applied for job sharing arrangement in the same employment. The respondent rejected her request. The ET as affirmed by the appeal court  ruled that the  “refusal to job share of a full time job amounted to unlawful indirect sex discrimination contrary to section 1(2)(b) of the 1975 Act.[22] It is accepted by the appellants that the refusal to consider job sharing acted to the detriment of the respondent (section 1(2)(b)(iii)) and that child caring responsibilities were such that the refusal would be to the detriment of a considerably larger proportion of women than of men (section 1(2)(b)(i)”[23] The appeal court ruled further that Sec 1(2)(b)(ii) requires the employer to show that the proposal (refusal) is justifiable regardless of the gender of the employee. It must be objectively justifiable[24] and reasonable[25] which reflects the principle of proportionality.

“The employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary” (par. 32 of the Decision, Hardys & Hansons Plc v Lax [2005] EWCA Civ 846)

In a recent case, British Airways Plc v Starmer [2005] UKEAT 0306_05_0607 (6 July 2005),[26] the appeal court affirmed the decision of the Employment Tribunal in finding “that the Respondent unlawfully discriminated against the Claimant, contrary to ss1(2)(b) and 6(2)(b) of the Sex Discrimination Act 1975 (“the Act”): the other decision of the Tribunal relating to the Flexible Working (Procedural Requirements) Regulations 2002 was and is non-contentious and is not before us. S1(2)(b).” Starmer is a pilot of the Respondent who wanted to work part time from full time so that she could care for her children. The respondent refused her request. The Tribunal ruled,

“The Claimant’s case was that other pilots had left the Respondent’s employment or had difficulty working for them because of childcare commitments. Reference was made by the Claimant’s witnesses to the difficulties which certain other named women have in working full-time for the Respondent” (par. 27.4 Decision).

 

On the justification issue of whether the respondent is justified in denying the claimant’s request, the Tribunal ruled by reiterating the pronouncement in the case of Allonby v Accrington College[2001] ICR 1189 at 1196.[27] It applied the objective test to the issue as to whether the Respondent’s denial was justified; such reasons “must not be tainted with sex, whether the Respondent’s objectives were legitimate, whether the means chosen for achieving those objectives are appropriate to achieve them and are reasonably necessary for that end. This involves a consideration of the disparate impact on women including the Claimant and whether the reasons, if established, outweigh the seriousness of the disparate impact. The more serious the impact the more cogent must be the justification” (par. 32 of the Decision).

 

Dismissal based on Constant Tardiness and Absence due to an Emergency/Accident

The dismissal of Bianca is unlawful. The Employment Rights Act 1996 entitles Bianca to parental leave under Chapter II, Sections 76-78 and the Employment Relations Act 1999.  This entitles her to a reasonable amount of time off during normal work hours to attend to the care of a dependant. This includes providing assistance when her child falls ill or is injured and consequently makes arrangements for the care of her injured or sick child. Bianca responded to an emergency when her child figured in an accident. with the mug of coffee.  The law requires dismissal must be based on a valid, fair, and substantial reason of a kind as to justify the dismissal. In the present case, the cause for the dismissal of Bianca is an exercise of her right which the law has entitled her. Moreover, DSS must follow the Statutory Dismissal Procedure,[28] i.e. give a statement of the grounds for dismissal and invite Bianca to a meeting, hold the meeting and confirm the decision in writing and note the right of appeal. Failure to observe these procedures would automatically render the dismissal unlawful.

In the case of White v Timbmet Ltd. 2000] UKEAT 1125_99_2706,[29] the Tribunal found the respondent to have unlawfully dismissed the claimant, a telemarketer because she could not comply with the work schedule due to child care responsibilities.

In fine, I would advise Bianca first to appeal her dismissal to DSS and if dismissal is confirmed, then she can bring the issues before the employment tribunal for unlawful dismissal, indirect sex discrimination and for the recalculation and payment of SMP taking into consideration her 3% pay rise.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

References

Alabaster v WoolwichPlc & Anor [2002] EWCA Civ 211 (26 February 2002). British and Irish Legal Information Institute. Retrieved on March 17, 2007, from

http://www.bailii.org/ew/cases/EWCA/Civ/2002/211.html

Allonby v Accrington College[2001] ICR 1189 at 1196. British and Irish Legal Information Institute. Retrieved on March 17, 2007,

from http://www.bailii.org/ew/cases/EWCA/Civ/2001/529.html

 

Barry v. Midland Bank Plc [1999] UKHL 38; [1999] 1 WLR 1465; [1999] 3 All ER 974 (22nd July, 1999). British and Irish Legal Information Institute. Retrieved on March 17, 2007, from  http://www.bailii.org/uk/cases/UKHL/1999/38.html

 

British Airways Plc v Starmer [2005] UKEAT 0306_05_0607 (6 July 2005).  British and Irish Legal Information Institute. Retrieved on March 17, 2007 from, http://www.bailii.org/uk/cases/UKEAT/2005/0306_05_0607.html

 

British Employment Law Commentary: Sex discrimination/general introductory note. emplaw.co.uk. Retrieved on  March  16 2007, from

http://www.emplaw.co.uk/researchfree-redirector.aspx?StartPage=data%2f084001.htm

 

 

 

Creating More Balance web site. Flexible working—the options. Retrieved on March 18, 2007,from http://www.cmb.org.uk/UserFiles/File/Flexible%20Working%20Overview.pdf.

 

 

Department for Work and Pensions, Services and benefits, paragraph 12, Retrieved March 17, 2007, from

http://www.dwp.gov.uk/lifeevent/benefits/ecj_judgement.asp

 

Employment Act 2002, Office of Public Sector Information. Retrieved on March 18, 2007 from, http://www.opsi.gov.uk/acts/acts2002/20020022.htm

 

Employment Relations Act 2002.

 

Employment Rights Act 1996, as amended Retrieved on March 17, 2007, from http://www.emplaw.co.uk/load/4frame/era96/era96index.htm

 

Ewing, K. McColgan, A., & Collins, H. (2005). Labour law, cases ,texts and materials   Oxford: Hart Publishing.

 

Hardys & Hansons Plc v Lax [2005] EWCA Civ 846. British and Irish Legal Information Institute. Retrieved on March 17, 2007, from

http://www.bailii.org/ew/cases/EWCA/Civ/2005/846.html

 

Joan Gillespie and others v Northern Health and Social Services Boards, Department of Health and Social Services, Eastern Health and Social Services Board and Southern Health and Social Services Board. (Social policy) [1996] EUECJ C-342/93 (13 February 1996 ). British and Irish Legal Information Institute. Retrieved on March 17, 2007 from http://www.bailii.org/eu/cases/EUECJ/1996/C34293.html

 

Sex Discrimination Act 1975.

Statutory Maternity Pay (General) (Amendment ) Regulations 2005. Retrieved on March 18, 2007, from http://www.dwp.gov.uk/publications/dwp/2005/ria/ria_smpg_amd_reg05.pdf.

 

White v Timbmet Ltd. 2000] UKEAT 1125_99_2706.  British and Irish Legal Information Institute. Retrieved on March 18, 2007,  from http://www.bailii.org/uk/cases/UKEAT/2000/1125_99_2706.html

 

Yourjobrights.co.uk,  Your family rights. Retrieved on March 17, 2007, from

http://www.yourjobrights.co.uk/family.htm#3

 

 

 

 

Summary List of Cases

Alabaster v WoolwichPlc & Anor [2002] EWCA Civ 211 (26 February 2002).

Allonby v Accrington College[2001] ICR 1189 at 1196. British and Irish Legal Information

Institute.

Barry v. Midland Bank Plc [1999] UKHL 38; [1999] 1 WLR 1465; [1999] 3 All ER 974 (22nd

July, 1999).

British Airways Plc v Starmer [2005] UKEAT 0306_05_0607 (6 July 2005).

Hardys & Hansons Plc v Lax [2005] EWCA Civ 846.

 

 

Joan Gillespie and others v Northern Health and Social Services Boards, Department of Health and Social Services, Eastern Health and Social Services Board and Southern Health and Social Services Board. (Social policy) [1996] EUECJ C-342/93 (13 February 1996 ).

 

 

White v Timbmet Ltd. 2000] UKEAT 1125_99_2706.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1]British Employment Law, emplaw.co.uk Commentary: Sex Discrimination/General Introductory Note, retrieved on  March  16 2007, from

http://www.emplaw.co.uk/researchfree-redirector.aspx?StartPage=data%2f084001.htm
[2] Employment Rights Act 1996, as amended s 98 (2).
[3] Employment Rights Act 1996, as amended, s 111, c 2
[4] See Department for Work and Pensions, Services and Benefits, paragraph 12, Retrieved March 17, 2007, from http://www.dwp.gov.uk/lifeevent/benefits/ecj_judgement.asp
[5] Joan Gillespie and others v Northern Health and Social Services Boards, Department of Health and Social Services, Eastern Health and Social Services Board and Southern Health and Social Services Board. (Social policy) [1996] ECJ reference C-342/93, British and Irish Legal Information Institute, retrieved on March 17, 2007 from http://www.bailii.org/eu/cases/EUECJ/1996/C34293.html

 

[5]See also The Statutory Maternity Pay (General) (Amendment ) Regulations 2005, Retrieved on March 18 2007 from http://www.dwp.gov.uk/publications/dwp/2005/ria/ria_smpg_amd_reg05.pdf
.
[7] as provided for in the Employment Rights Act 1996, as amended, Part VIIIA, S 80F, Retrieved on March 17, 2007 from http://www.emplaw.co.uk/load/4frame/era96/era96index.htm
[8] Employment Rights Act 1996, as amended, Part VIIIA, S 80F, Retrieved on March 17, 2007 from

http://www.emplaw.co.uk/load/4frame/era96/era96index.htm
[9] Creating More Balance web site, Flexible Working—The Options, pp. 1-2, Retrieved on March 18, 2007 from http://www.cmb.org.uk/UserFiles/File/Flexible%20Working%20Overview.pdf.
[10] This allows people the option to arrange their work hours subject to an agreement that all will be present during the core hours.
[11] The employee continues employment under full time or part time contract but has the right to unpaid leave of absences during school holidays.
[12] Employees work their total contracted hours over a shorter period.
[13] This arrangement allows teams of employees to agree on their schedules of work without compromising the needs of the organization/employer.
[14] This option involves work which involves less than 30 hours a week.
[15] This arrangement allows workers to trade income for time with a right to return to full time.
[16] See Section 80F (4) of the Employment Rights Act 1996, as amended.
[17] (b) shall only refuse the application because he considers that one or more of the following grounds applies–(i) the burden of additional costs, (ii) detrimental effect on the ability to meet customer demand, (iii) inability to re-organise work among existing staff, (iv) inability to recruit additional staff, (v) detrimental impact on quality, (vi) detrimental impact on performance, (vii) insufficiency of work during the periods the employee proposes to work, (viii) planned structural changes, and (ix) such other grounds as the Secretary of State may specify by regulations
[18] A decision of the House of Lords on appeal of the case Barry v. Midland Bank Plc [1999] UKHL 38; [1999] 1 WLR 1465; [1999] 3 All ER 974 (22nd July, 1999), British and Irish Legal Information Institute, retrieved on March 17, 2007 from  http://www.bailii.org/uk/cases/UKHL/1999/38.html
[19] Barry v Midland Bank plc [1999] ICR 859, British and Irish Legal Information Institute, retrieved on March 17, 2007 from  http://www.bailii.org/uk/cases/UKHL/1999/38.html
[20] Yourjobrights.co.uk,  Your Family Rights, Retrieved on March 17, 2007 from

http://www.yourjobrights.co.uk/family.htm#3
[21] See Appeal case of Hardys & Hansons Plc v Lax [2005] EWCA Civ 846, British and Irish Legal Information Institute, retrieved on March 17, 2007 from http://www.bailii.org/ew/cases/EWCA/Civ/2005/846.html

 
[22]  Refers to Sex Discrimination Act 1975.
[23] See paragraph 13 of the Decision in the case of Hardys & Hansons Plc v Lax [2005] EWCA Civ 846, British and Irish Legal Information Institute, retrieved on March 17, 2007 from http://www.bailii.org/ew/cases/EWCA/Civ/2005/846.html
[24] Citing the case of Barry v. Midland Bank Plc [1999] UKHL 38; [1999] 1 WLR 1465; [1999] 3 All ER 974 (22nd July, 1999).
[25] Citing the case of Bilka-Kaufaus G.m.b.H. v Weber von Hartz (Case 170/84) [1987] I.C.R. 110.
[26] British Airways Plc v Starmer [2005] UKEAT 0306_05_0607 (6 July 2005), British and Irish Legal Information Institute, retrieved on March 17, 2007 from http://www.bailii.org/uk/cases/UKEAT/2005/0306_05_0607.html
[27] Allonby v Accrington College[2001] ICR 1189 at 1196, British and Irish Legal Information Institute, retrieved on March 17, 2007 from http://www.bailii.org/ew/cases/EWCA/Civ/2001/529.html
[28] Employment Act 2002, Office of Public Sector Information, retrieved on March 18, 2007 from http://www.opsi.gov.uk/acts/acts2002/20020022.htm

 
[29] White v Timbmet Ltd. 2000] UKEAT 1125_99_2706, British and Irish Legal Information Institute, retrieved on March 18, 2007 from http://www.bailii.org/uk/cases/UKEAT/2000/1125_99_2706.html

 

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