23 Jan 2010

Sample Essay: United Kingdom Employment law

Employment law plays an important law in defining the relationship between the employers and employees .It involves the laws,administrative rulings within a given period and the precedents which define the rights and restrictions on the employees and the employers. Generally employment law is divided into collective labor law and individual law. Collective law involves relationship between employee,union and employer while individual law deals with employee4s work at work and this comes through contract of work.

The laws protecting the labor rights in 19thand 20thcentury were initiated after the labor movement The labor laws have been incorporated in the economy and the society since the industrial development.

History of labor law

Labor law came about due to demand for workers for a better working condition and the workers call to get involved in organization such as trade unions.

Overview of the general employment law

Contract of employment

In labor law,contract of employment is a basic issue that is considered in any employment. It is an obligation between an employer and employee. The terms and conditions of a contract are guided by legislation or common law which put a restriction in the way in which the employee and employer agreement are met in order to protect the employee and facilitate a flexible labor market. The intention of  the contract of employment is to assist the employee come to an understanding of what to expect and what is expected of him/her. For example it assists the employee to know the job description,terms attached to salaries and wages,rights of employees such as maternity leave and notice during dismissal.

Unfair dismissal

These are laws that protect the employees against unfair dismissal without proper reasons. Before the employee is dismissed he/she should be given a chance to defend themselves before sound judgment is reached before he /she can be dismissed.

Child labor

Child labor involves the employment of children who are underage. The law determines the age in which children can be employed and any employment of a person below that age is illegal and will be going against the rights of a child. Underage is pegged below 18 years inn most of the countries.

Health and safety

These are laws which ensure that the safety of the workers is given priority in any organization. It ensures that the employers provide safety devices and ensure that the working environment is safe.

Minimum wage

This refers to the law which puts a limit on the minimum amount that a worker can be paid per hour. Each country has its own minimum wage regulations and law. It is not determined by the law of supply and demand in a free market but by regulations set by the law making agencies.

Anti discrimination law

This law prohibits discrimination against employees. It is illegal to discriminate against disabled individuals,race and gender.

Working time

Labor laws govern the time in which employees are supposed to work. The time in which the employee work should be reasonable and acceptable to the employee to ensure that they are not exploited. This is to ensure that the employees get enough time to relax. This law also govern the way overtime by employees is to be managed.

British labor law

This is a body of law which takes part in regulating the rights,restricts the activities of trade unions,workers and employers in great Britain. United kingdom employment law has been developing rapidly for the forty years and this is attributed to strong labor movements and the membership of the European union. The current employment law is a creation of statute  under the act of parliament of the united kingdom. Some of the employment statute law include employment rights act 1996,the employment act 2002 and other legislative laws which outlawing discrimination basing on sex ,race,disability,religion and age.

Contract of employment in the united kingdom

Contract of employment in the united kingdom refers to an agreement between an employer and an employee in relation to a given work. The contract come into action once an employee accepts the job offer and both sides are bound to the terms of agreement until it is properly ended or until the terms are changed. Most of the employment contract come in form of a written statement referring to the employment particulars stating some of the main terms. This statement must be given two months before commencing work. The statement include pay,holiday entitlement,hours per week,sick pay arrangements,information about grievances and disciplinary procedures and notice periods. This has been working well in the united kingdom because it enables the worker by giving him more time(2 months) and more knowledge to come to an understanding about what a given work entails and what is required of the employer and the employee.

UK Contract law case study

[1]Nethermere(St.Neots)Ltd versus Gardiner

Nethermere (st Neots)ltd v Gardiner and another (1984)ICR612 was a British labor law case in the court of appeal in the field of homework and vulnerable workers. This case stands on the ground that where mutual obligation stands between an employer and an employee whether casual or not then a contract of employment exists.

The applicants:Mrs Gardiner and Mrs Taverna used to sew trouser flaps in the factory of Nethermere Ltd. They used to work part time. At different case they used became pregnant andbmade arrangements to work at home. They used to work 5 to 7 hours a day.The sewing machines were provided by Nethermere Ltd. Their hour used to vary according to the employer’s needs and payment made in accordance to the quatity of the trousers flap they used to make but were not formally obliged to accept the work.A dispute rose when the employer declined to offer them an entitlementy to holiday pay.The ladies claimed that they had been unfairly and constructively dismissed.

A major question on appeal was wether the ladies were employee under the basis of contract of employment and hence entitled to unfair dismissal rights under section 153 of the employment protection Act of 1978.This act is currently in section 94 Employment rights Act 1996.

The industrial trubunal held that there was an existance of contract of employment applying the test of ladies being in their personal business.The employment appeal tribunal dismissed the employer appeal and favoured the ladies.The employer appealed again.

In the court of appeal Stephenson LJ in the majority found that whether a contract created a contract of service (Contract of employment ) rather that the contract for services was not of law but of fact. When old case are followed in relation to the obligation required of the employees,workmen were punished by courts for failing in their obligation to serve their masters.

This example is in cases such as Reg versus Welch(1853) 2 E and B.357.But cases which occurred later have shown that a contract of employment does not oblige the master to provide the servant with work in addition to wages. For example Collier versus Sunday referee publishing co ltd(1940) 2 K B 647,650,per Asquith J.An obligation to offer work was not implied by this court in a salesman’s contract. After following the proceedings of the following cases:Turner versus Sawdon and co,Devunald versus Rosser and sons,Chadwick versus Pioneer private telephone co.ltd and ready mixed concrete(south east )ltd versus minister of pension and national insurance they came to a conclusion that a contract of service exist if the following conditions are fulfilled.

(a) The servant agrees that in a given wage he will provide his skill in performing some work for his master.

(b)He agrees that the performance of work is subject to a certain degree of control by his master

(c)Other provision of the contract are consistent with its being a contract of service.

According to judgment,each side must have  minimum obligation that is irreducible to create a contract of service and so a conclusion was reached that the ladies were under a contract of employment and the company lost the appeal.

This case shows that the united kingdom law on employment has undergone metamorphosis to a level that provide fairness to both the employees and the employer.

There have always been disputes in relation to employment law between the employers and employees and this has led to many changes that have come about to solve these disputes that have brought great difficulty in dealing with cases that involve employment disputes. In the past,most of the cases used to favor employers but with the change in education levels,emergence of strong trade unions and call for more employees rights have led to the call in balance to be struck between legal certainty in the law of employment while at the same time doing justice in individual cases based upon the particular cases.

These changes have effectively been achieved in the united kingdom.

Process of unfair dismissal

Dismissal may occur in a case whereby the employer makes a decision of terminating a contract, a term contract ends and is not renewed and whereby the action of the employee makes the employer to terminate the contract of the employee.

The law provides for fair and unfair dismissal unlike the arbitral dismissal which was the order of the day in the past years. This is a major change in united kingdom law in relation to  the process of unfair dismissal.

There are different types of dismissals

Constructive dismissal

This dismissal occurs whereby an employee decides to resign because he/she has broken their contractual terms. In this case the individual may claim constructive or can claim to have been dismissed unfairly in an industrial tribunal. This dismissal doesn’t have to be unfair but it may pose a challenge to the employer to prove that the breach of contract was in fact fair.

Fair dismissal

This is whereby there is a solid reason for dismissing the employee according to the statutory law.The reasons may be due to retirement,capability,redundancy,capability,conduct and other statutory requirement that could prevent an employee from conducting a given work. The statutory law state that the dismissal and disciplinary procedure must be in writing to provide evidence in case of any dispute. In case of failure to provide any disciplinary procedure to the employee may prompt the industrial tribunal to order the employer to pay the employee a compensation fee.

Unfair dismissal

There are several instances in which the statutory law provides to be unfair dismissal. When the employee fail to follow appropriate statutory procedure when dismissing an employee then it becomes an unfair dismissal. Unfair dismissal may be as a result of the employee being dismissed  for being on paternal or maternal leave,propose to become or not to become a member of trade unions,seek to claim his/her rights as an employee and if the employee seeks to enforce his/her right under working time regulation 1998.This act of unfair dismissal may result in the employee seeking legal redress in a tribunal.

The handling of dismissals by the statutory law show that the united kingdom has been well achieved by the statutory laws of the united kingdom. The law provide for a balance between what is required of the employee and what is required of an employer. There are some instances in which the house of common has to intervene in cases in which receive unfair judgment due to loop holes in the law. For example employees can claim unfair dismissal under united kingdom law even if they do their work out of united kingdom and this follows the solid decision made by the house of lords.

Case

[2]Stephen Lawson ,a former security officer for support services firm Serco claimed that he had been forced to work on remote island in the south Atlantic for 64 hours per week.  According to his claim,the long hours were having adverse effect on his health and safety and so he resigned claiming  constructive dismissal. The court of appeal ruled that Lawson had no legal protection because he used to carry his duties abroad. In relation to the case the house of the lords has decided that because because the employer and the employee has connections with united kingdom,then Lawson has a right to claim unfair dismissal and that he has to claim his employment rights even if he used to work abroad. The case show vividly that the united kingdom is labor laws are changing despite the challenges faced in following the law and the case where rights of the employees are to be given a priority. According to the case,the law stands that an employee working outside united kingdom is not entitled to any compensation but the right of the employee has to be held because the employee is a citizen of the united kingdom and the company has connection in the united kingdom. The decision by the house of lords also played a great role in reducing the risk faced by employees who take overseas jobs and the employees from the united kingdom who work for companies with connection to the united kingdom can now be covered by the united kingdom laws.

In relation to unfair dismissal,the qualifying period in which an employee can make unfair dismissal in the united  kingdom was reduced from two years to one year and this was a milestone in british law to ensure that employees are accorded more employment rights.This statutory law took effect from 1st june 1999.Employment tribunal will now be able to hear complaints and make lawful decision from employees who have been dismissed unfairly with at least one year service.

[3]Case:Seymour-smithcase(C-167/97)

In this case,compansation for unfair dismissal and entitlement for redundancy pay needed two years of continous employment in a full time capacity whereby an employee works for 16 hours or more a week in order for him/her can make a claim. This was held until the decision that aws made by the house of lords in Regina versus secretary of state for employment ex parte equal opportunities commission(1994)I.R.L.R 176(the “EOC” case) part time employees working between 8 and 16 hours per qualifying week who could work for 5years to be compensated and part time workers who worked for less than 8 hours who could not qualify for unfair dismissal compensation or redundancy pay.The house of common made a decision which held that the hours per week qualifying for compensation by part-time employees who claim redundancy pay was incompatible with article 119 of the EEC Treaty and council directive 75/117 EEC(equal pay directive) and that those for unfair dismissal were incompatible with council directive 76/207 EEC(the equal treatment directive).Due to this the united kingdom government introduced the employment protection (part time) regulation SI 19955/31 which abolished all the hours per week qualifying threshold for part time workers so periods of qualifying services for all employees were equalised at two years.

In the case:R versus Secretary of state for employment ex parte  seymour-smith and Parez(1994) I.R.L.R.448,(1995) I.R.L.R.464,the two employees made a claim which stated that the two-year minimum service qualification for unfair dismissal -as enacted in the employment employment protection consolidated act of 1978 at 26 and subsequently raised by statutory order to one year in 1979 and to two in the year 1978 was I itself discriminatory as it favored men more that women in terms of qualification for compensation. The two employees had been dismissed in the year 1991 and each has served in employment for 15weeks and could not complain to an employment tribunal because hey had not satisfied the two year threshold for their dismissal to be considered to be unfair. This situation was overturned by the house of lords who reduced the period of compensation for unfair dismissal from two years to one year. This case show clearly that  the united law is evolving from the discriminatory phase to a more liberal phase whereby the workers cannot be unfairly dismissed at will citing time as the  factor permitting unfair dismissal. The decision of the house of lords made a big milestone in enhancing the workers right and hence improved the quality of employment law.

Unfair treatment

Unfair treatment falls under employment discrimination law in the united kingdom and its aim is to fight discrimination based on gender,race,religion,sexuality,disability and age. Actually the law is not filly consistent and has the largest number of cases in industrial tribunals. Despite the fact that it is inconsistent,the united kingdom has tried as much as possible to ensure that there are changes ensure that workers rights are maintained and the justice system is in accord with the employees rights. Changes in the anti discriminatory law have been realized in recent years but they old common laws and acts of parliament have been discriminatory.  One of the discriminatory case was in 1907 in the [4]case Nairn versus The university court of the university of st Andrews whereby a judge called Lord McLaren declared that in the principle of unwritten law of united kingdom that men only had the right to take part in the election of representative to parliament. Legislation on equality has taken a long path as it has been receiving many opposition from groups although currently a big step has been taken to reduce inequality in employment.

Several legislation have been taken to reduce inequality not only in work places but also in other institutions such as schools.

Gender

In united kingdom,equality between sexes has been in force since 1970 and became law under equal pay act 1970 and sex discrimination act 1975.The laws generally ensure that both the male and the female receive equal pay for equal work done. The protection from harassment act 1997 was a major law against gender discrimination as it outlaws bullying in the work place especially in relation to gender .The law provide a jail term of up to six months or a fine for one who bully other for more than two time.

Race

This is the most controversial as a proper legislation has not been arrived at.

A major legislation was The Race Relations act and was established to prevent discrimination on the ground of race. The law prevent discrimination on the basis of ethnicity,color,race and national origin in them field of employment. The latest amendment was in 2000 which imposed statutory duty on the public bodies to promote race equality and come up with procedures which effectively prevent racial discrimination.

Case

[5]Weathersfield ltd versus Sergent

Weathersfield ltd versus Sergeant(1999) IRLR 94 is a labor law relating to racial discrimination.

Weatherfield ,a car hire company had employed Mrs sergeant .She was told that the company had a policy concerning the Asians and the colored. She was told that if she got a telephone call from the asian or colored who she could recognize from their accent ,then she should tell them that the vehicles for hire are not available. She was annoyed about this and resigned citing constructive dismissal in regards to racial discrimination. She was neither a colored or an Asian but found herself on the ground of racial discrimination.

The judgment on this case as per the racial discrimination act 1976 found the employer on the wrong based on racial discrimination.

This case was a step froward in fighting racial discrimination especially in a society where racism is rife in work places. By the lady rejecting the directive of her employee,this clearly show that the united kingdom is in the path of ensuring that racism is wiped out of work place and cementing the employment right of any person working in any organization irrespective of his/her race.

Age

The employment Equality (Age) regulation act of 2006) is a secondary legislation which outlaws unreasonably discriminating employees basing on their age. The issue addressed include provision of a national default age set at 65 years and the ability of the employees to work beyond the retirement age following procedure in the 6th schedule.

Religion

The employment Equality (religion) regulation2003 is a law in united kingdom formed to fight discrimination on the ground of religious affiliation.

[6]Case:Stedman versus united kingdom

Stedman versus united kingdom(1997)23 EHRR CD 168 is a labor law case which puts into consideration religious freedom and the duty of employers to allow employees to have sundays off.

Miss steadman,a christian did not want to work on sundays.Everyone used to work on sunday.She claimed that this was a breach of her freedom to religious under art.9 ECHR.She also complained that working on sundays was a breach of her right to a family life  under art 8,because she was bound to work on sundays  and yet her husband never used to work on sundays.

The case was not admitted to the actual court but the European commission of human rights made a statement that miss Stedman resighed because she did not want to work.It was found that her application was ill founded under Art27(2).For Art 8,there is no interference between family life and work and so no violation.The case was dismissed.

According to the case,although the employees have a right to religion,the above case was faulty as it included both family issues and employment law which are completely independent and so the law dismissed it as baseless.This is a clear indication that both the employees rights and the law carry a similar weight and are interdependent as it is the law which interprets the extent to which the employee rights goes.The employee in the case above has both the right to religion and to tend to her family but both the rights are not under employment law and they were dismissed.

Sexuality

Employment Equality (sexual orientation ) regulation 2003 is one of the secondary regulation which prohibits employers discriminating on the ground of sexual orientation. They touch in areas such as direct sexual discrimination,indirect sexual discrimination,victimization and sexual harassment.

Disability

The discrimination act 1995 is a united kingdom law which prohibit discrimination of employees based on their disability. This is a civil right law and the united kingdom has effectively put up measures to combat discrimination against the disabled.

Other major amendments have been made in relation to people with disability. These include:

From 2nd December 1996 it has been unlawful for service providers to treat disabled people less favorably in relation to their disability.

From 1st October service providers have made reasonable changes to suit the need of disabled people and providing extra help.

From October 2004 the service providers have made changes in relation to physical features of their premises to overcome physical barriers to access.

[7]Case:Collins versus Royal national theater board limited

Collins versus National theatre board ltd(2004) IRLR 395 which is a united kingdom law under Disability discrimination Act 1995.It is about the responsibility of the employer to make reasonable accomodation for the employees who are disabled.

Mr collins lost part of his finger while working in the royal national theater carpentry shop,making his hands to be clumsy. He had worked with the carpentry shop for 18 years. He refused to undergo surgery and as a result he was dismissed.

Sedley LJ held that theatre carpentry shop refused to make necessary adjustments to suit Mr Collins.

To reduce the rate of discrimination against people who are disabled ,the united kingdom has come up with reasonable laws that have influenced judgement on several cases such as the case Collins versus Royal national theater board limited.It has tried to put a humane face on the way disabled people are dealt with and hence make them feel that their rights are being catered for by the law.

References

Gillian Morris,Simon Deakin,Labour law(2004)Hart publishing

Hugh Collins,Keith Ewing,Aileen McColgan(2005).Labour law,text ,cases and materials.New york:Harts publishing

Lord Wedderburn(1986).The worker and the law:London:Sweet and Maxwell.

Mark Freedland(2003)  The Personal Employment Contract.New york:Oxford University Press

http://www.lawontheweb.co.uk/basics/employment.htm

Ballard Spahr Andrews and Ingersoll(2008).Labor law.(Online)Available at:http://www.virtualchase.com/topics/labor_law.shtml

Paul O Higgins(1988).Labour law in great britail and ireland.Cambridge:Cambridge university press.

Bibliography

Arthurs, Harry, “Reinventing Labor Law For the Global Economy: The Benjamin

Aaron Lecture”, Berkeley Journal of Employment and Labor Law v. 22 no2 (2001) p.

271-294

Lo Faro, Antonio, “Fairness at Work? The Italian White Paper on Labor Market

Reform”, Industrial Law Journal v. 31 no2 (June 2002) p. 190-198

Bercusson, Brian, “The European Social Model Comes to Britain”, Industrial Law

Journal v. 31 no3 (September 2002) p. 209-244

Alben, Elissa (student author), “GATT and The Fair Wage: A Historical

Perspective on the Labor-Trade Link”, Columbia Law Review v. 101 (2001) p. 1410

Abbott, Frederick M., Breining-Kaufmann, Christine, and Cottier, Thomas. (eds.) International Trade and Human Rights: Foundations and Conceptual Issues: World Trade Forum v. 5. Ann Arbor: University of Michigan Press, 2006. 397pp.

Andreassen, Bård Anders and Marks, Stephen P. (eds.) Development as a Human Right: Legal, Political, and Economic Dimensions. Boston: Harvard School of Public Health, 2006. 350pp.

Barria, Lilian A. and Roper, Stephen D. The New International Institutions of Human Rights: Efforts to Promote International Justice in Domestic Contexts. Aldershot: Ashgate Publishing

Beiter, Klaus Dieter. The Protection of the Right to Education by International Law: Including a Systematic Analysis of Article 13 of the International Covenant on Economic, Social and Cultural Rights. Leiden: Brill Academic Publishers, 2006.

Bedi, Shiv. The Development of Human Rights Law by the Judges of the International Court of Justice. Oxford: Hart Publishing, 2007

Beiter, Klaus Dieter. The Protection of the Right to Education by International Law: Including a Systematic Analysis of Article 13 of the International Covenant on Economic, Social and Cultural Rights. Leiden: Brill Academic Publishers, 2006. 752pp

South Asia Human Rights Documentation Centre . Introducing Human Rights: An Overview Including Issues of Gender Justice, Environmental, and Consumer Law. Oxford: Oxford University Press, 2006. 256pp


[1]Mark Freedland(2003)  The Personal Employment Contract.New york:Oxford University Press

[2]Ballard Spahr Andrews and Ingersoll(2008).Labor law.(Online)Available at:http://www.virtualchase.com/topics/labor_law.shtml

[3]Ballard Spahr Andrews and Ingersoll(2008).Labor law.(Online)Available at:http://www.virtualchase.com/topics/labor_law.shtml

[4]Gillian Morris,Simon Deakin,Labour law(2004)Hart publishing

[5]Hugh Collins,Keith Ewing,Aileen McColgan(2005).Labour law,text ,cases and materials.New york:Harts publishing

[6] Lord Wedderburn(1986).The worker and the law:London:Sweet and Maxwell.

[7]Lord Wedderburn(1986).The worker and the law:London:Sweet and Maxwell

02 Jul 2009

Sample Essay: Article Critique – The Garden of Eden by Ernest Hemingway

Throughout the entirety of the story, the primary problem seemingly dwelled within David and Catherine themselves – betrayal, overflowing lust, immorality, lack of remorse and insensitivity. They were newlyweds, yes and sexual ideas that were triggered by Catherine were by no means peculiar, for from her perception, the warmth and thrills brought about by their unpredictable sex life would only strengthen their relationship; but it was as if the line between marriage and infidelity had been crossed. This was the problem that was going to haunt them like a disturbed ghost through the course of the story and the eventual fates that they separately traversed.

The significant symbolization of the power struggle that was stroked in the story was emphatically written by the writer Carl Eby, in 1999, who stated that his novel possessed some political implications. In a way, the victory of the writing of African novels by the character of David symbolized the victory of African civilization over colonialism (Eby 1999). And indeed it was a representation of such, for it first experienced tumultuous stages before finally prevailing. Colonialism on the other hand, in a way was represented by Catherine, whose experimentations, inhibitions and eventual repression of David’s writing led to a somewhat of an uprising. Albeit Eby’s point was not that clear, it did insinuate the significance of the symbols Hemingway used, for he did state the title as Hemingway’s Truth and Tribal Politics. Moreover, Eby added another significant facet to the criticism of the story, as he directly stated that the work was somewhat a reminiscing action of Hemingway, as some sort of diary. But most, his symbolizations of power struggle were never more apparent.

Another critic had perceived and critiqued the story from a different perspective, from a moralist perspective. And she had stated that the story was merely a story of the conflict of good and evil which was the implication of a hunger to find an identity. This assumption was never more apparent in the character of Catherine, as she had always toiled to make herself look masculine, dressing in a man’s clothes, cropping her hair and tanning her skin. And not only those intrapersonal qualities but also her racist suggestions, for at one time she had considered her life as more superior than those of the Africans, simply degrading and dehumanizing her fellow humans just because of their scarcity of knowledge and skin color (Tellefsen 2000). Furthermore, because of the worldly and evil desires of Catherine, she had also desired to create a new person out of her straight husband, as she quite successfully pushed him into having sexual relations with other women. Blythe Tellefsen had narrowed the key issue of the story as the outcome of Catherine’s futile efforts to become someone she was not. Catherine’s downfall surfaced when her husband David realized that he could no longer morally fathom the things his wife was trying to make him do, to yield to her demands and lose his own morality. The battle between good and evil culminated in David feeling love and fondness for the girl he and his wife has had sexual relations with, Marita, for the latter was only a victim of his wife’s evil, he theorized.

The perspectives of the critics, Eby and Tellefsen, were taken from a morally inclined one, because if not, then the actions of the characters in the story were all to be deemed right. The story was about the fading away of morality when it was needed and its recurrence when damage has been done and emotional scars had been inflicted, but nonetheless, change is still probable, as the characters David and Marita had shown. For as long as a man’s heart still pumps blood permeated by love, change is never too late, no sin is deemed too grave to be unforgivable and no past is to horrible to be  considered unforgettable.

Works Cited

Eby, Carl. “Hemingway’s Truth and Tribal Politics.” The Hemingway Review 19(1999): 24.

Hemingway, Ernest. The Garden of Eden. New York: Scribner Book Company, 1986.

Tellefsen, Blythe. “Rewriting the Self against the National Text: Ernest Hemingway’s the Garden

of Eden.” Papers on Language & Literature 36(2000): 58.

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