Employment law is an expansive area including all areas of the employer/employee relationship except the negotiation process covered by labor law and collective bargaining.
Laws to establish fair wages, limit the number of hours worked in a week, and prevent children from being exploited are some of the areas covered by employment law. Rules to regulate the cleanliness of the workplace, and precautions to protect employees and prevent dangerous accidents are also components of employment law. Employment law also includes protection against discrimination in the workplace based on race, gender, religion, or disability. Generally, employment law protects employees from any exploitation by their employers.
In the recruiting processes, employers must take into consideration that it is unlawful to discriminate between applicants on the basis of gender, marital or civil partner status, race, colour, nationality, ethnic or national origins, pregnancy, sexual orientation, religion or other belief. It is also unlawful to publish job advertisements which might be construed as discriminatory. Discrimination in hiring and in respect of the terms and conditions of employment is also forbidden. Exceptions to this rule do exist, for example where sex or marital status is a genuine occupational qualification (GOQ).
The law protects disabled persons by making it unlawful to discriminate against such persons in the interviewing and hiring process and regarding the terms of the offer of employment. Employers are required to make reasonable adjustments in the place of work to accommodate disabled persons. However, cost may be taken into account in determining what is reasonable.
Termination of employment
Matters relating to termination of employment are governed by the Employment Rights Act 1996. When the decision to terminate employment is in some way related to the activities of a trade union, however, the matter may be governed by the Trade Union and Labour Relations Act 1992. Termination of employment or ‘dismissal’ occurs where the employer ends the employment relationship, fails to renew an employment contract or forces the employee to retire. Discrimination in dismissal can take the form of unfair dismissal, wrongful dismissal, constructive dismissal or redundancy dismissal.
Unfair dismissal occurs where for example, the employer fails to give a valid reason for the dismissal. Wrongful dismissal occurs where the employer fails to give proper notice of termination or fails to follow the guidelines for termination contained in the employment contract. A dismissal can be both unfair and wrongful. For example, if an employee is fired with immediate effect and without being given a reason for the dismissal, she may choose to bring an action against her employer for both unfair dismissal, i.e. dismissing without reason; and unlawful dismissal, i.e. dismissing with immediate effect instead of giving the 3 months notice as required by the employment contract.
Redundancy occurs where the employee’s job becomes unnecessary or redundant due to, for example, the implementation of a new system or new technology, the closing or moving of the business or a reduction in staffing to cut costs. Employees employed for more than 2 years are entitled under statute to redundancy payments. An employer may seek to avoid these redundancy payments by retaining the employee but changing their duties to such an extent that the employee is no longer able to do the job and resigns. In such a case, the employer’s actions have, in effect, forced the employee to resign and the employee in this case may be able to bring an action against his employer for constructive dismissal.
Enforcement of rights
Protection of employee rights is largely enforced through an Employment Tribunal. The Tribunal has the power to make decisions and issue orders in respect of the parties’ rights with regards to complaints. It may also order compensation for loss of prospective earnings and injured feelings.
EU employment law
Employment law in Europe is influenced by EU law. The EU issues directives which dictate to European governments the results to be achieved while leaving it up to the governments to decide upon the method to be used to ensure the results are achieved. The use of EU directives allows the upholding of certain EU Standards while giving member states leeway in accommodating national cultures. For example, the European Working Time Directive limits the maximum length of a working week to 48 hours over 7 days and requires a minimum rest period of 11 hours in each 24 hour period. In the UK this directive has been implemented through the Working Time Regulations 1998 which provides for a maximum working week of 48 hours but allows employers to ask employees to opt out of this maximum. Other EU directives have been passed in the areas of equal pay for equal work, sex discrimination, acquired rights and collective redundancies.
Employment law in the US
In the US employment legislation consists of federal and state statutes, administrative regulations and judicial decisions. Employment laws are enforced through the US Federal Department of Labor, the Equal Opportunity Commission, and the National Labor Relations Board. Just as in the UK, US employment legislation is aimed at protecting employee’s rights. For example the Fair Labor Standards Act prescribes minimum wage and overtime pay standards as well as record keeping and child labor standards for most private and public employment, including work conducted at home.
Employment law relates to the areas covered above while labour law refers to the negotiation, collective bargaining and arbitration processes. Labour laws deal primarily with the relationship between employers and trade unions. These laws grant employees the right to unionise and allow employers and employees to engage in certain activities (e.g. strikes, picketing, seeking injunctions, lockouts) so as to have their demands fulfilled.
Employment law in practice
Lawyers working with employment law may work with a range of issues such as writing and reviewing employment contracts, reviewing termination practices and compensation plans, handling dismissal cases, consulting on management education and training and compliance with health and safety regulations. Labour law lawyers advise on collective agreements, collective bargaining, strikes, lock-outs and unfair labour practices.
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