Transfer of Undertakings (Protection of Employment) Regulations 2006
The relationship between the employees and the employer are the fundamentals to ensure an organization success (Taylor and Emir 2015). Employment law has not only been enacted to protect the employees from the discretion of the employers but also to ensure that the functions of the organization are conducted properly. There are various legislations and regulations which deals with the rights and liabilities of both the employee and the employer such as the Equality Act 2010, The Employees Rights Act, The Health & Safety at Workplace Act 1974 (Araujo and Paugam 2016). This paper deals with the provisions in relation to the changes in structure of an organization, the importance of employee relation and ways to enhance them, best practices in relation to recruitment and selection procedure and the ways to get a favourable outcome from a tribunal. The paper also discusses the TUPE regulation and how they seek to protect the employees’ right to employment contract. The paper seeks to provide the consequences of discrimination during the section and recruitment procedure on the employers along with the factors which lead to discrimination. The paper does so through addressing different circumstances which arise during the accusation of Zuzu by Hell’s kitchen.
Transfer of Undertakings (Protection of Employment) Regulations 2006 is applicable on all organization and has been enacted to protect the rights of the employees in case of a takeover or accusation. Which the regulation are applied the employees of the previous employer automatically become the employees of the present employer and they have the right to be subjected to the same terms and conditions under the new employer. The previous organization may have had different rules s compared to the new employer and thus the new employer does not have the right to change the terms only because of the transfer. It is the duty of the previous employer to provide the new employer with the details of the existing employees. Although the employers must try to avoid redundancies there may be circumstance where it would be impossible to avoid them. The employees can claim constructive discrimination at the tribunal if they feel that their contractual terms have been changed to their detriment. In case of potential redundancy the employers have the duty to consult and do settlement with the employees directly or with the help of their representatives.
The concept of discrimination in the United Kingdom is governed by the Equality Act 2010. The act prevents any form of discrimination in a work place in relation to age, sexual orientation, maternity statues, gender, race, religion, matrimonial status, disability and gender reassignment. While selecting a person for a new role in the organization and while recruiting a new person to the organization the employees have to ensure that they do not indulge in any form of discrimination. Discrimination arises when a person is deprived of a specific benefit or role because he or she suffers from any protected characteristic as provided by the Equality Act 2010. For example if a a person is of a certain age or gender he cannot be deprived of any right because of his age or gender. There are a few defences which an employer can claim in case of discrimination. A person can be excluded from selection or recruitment process if his or her disabled characteristics do not allow proper execution of the company’s functions. For instance a black person cannot claim discrimination based on race if the required of the producer was a white person to do a specific role on the movie.
Discrimination in the United Kingdom
In the provided scenario it has been given that the manager had rejected the application of a mature student whom she considered to be too old to cope up with the job. It has also been notified by the manager that is is being difficult for her to manage an already existing old employee. As discussed above age is one of the protected characteristics as provided by the Equality Act 2010. In this case it is evident that thee manager indulged in discrimination related to age and although it has been unintentional it is an offence under the employment laws. The only way such actions could be justified is though the defence provided in schedule 9 of the Equality Act 2010. According to the provisions such acts could be justified in case of organization requirements but there is no such scope in this case. In the case Bernard reader also the organization can be subjected to discrimination as the manger is not behaving properly with him and describing him as an “oldie”. In the case of Martin v SS Photay & Associates [2007] ET/1100242/07 the plaintiff won the age discrimination claim as the employer did not treat him properly and disregarded his qualification in relation to the interview. In the case of Mangold v Helm (2005) C-144/04 it was held by the court that providing fewer benefits to a worker because of his age as compared to the younger workers accounted to unlawful discrimination.
The basic terms and agreements of the employment are provided through the employment contract. an employment contract does not have to be writing in order to be valid legally however it is suggested that such contracts must be in writing in order to protect the rights of the employers and employee. The contract of employment is initiated as soon as the employment terms are accepted. In this case there is no written contract for two years of the new and old employees. The manager has the duty to create a written employment contract according to the provisions of specific legislation ensuring the rights and liabilities of both employees and employers.
The contract of employment is governed by the Employee’s rights Act, the Human rights Act, the health & safety at work place act and the work time regulations 1998. With respect to the documentations the managers must ensure that the employment contract contains employment conditions, rights, responsibilities and duties of both employees and employers (Ruberj and Grimshd 2016). The contract must include all terms which have been agreed verbally, implied terms and the provisions of specific legislation for instance the National Minimum Wages Act. The document must include the name of the business, name of the employer, job description, payment structure and schedule, hours of work, holiday entitlements and relocation. The statement must also include pensions, collective agreements, notice periods, grievance procedures and period of employments.
The Contract of Employment
A settlement agreement is a form of negotiation which two parties to an employment dispute use in order to settle the dispute out of courts. An employer and an employee have the right to enter into a settlement agreement. The agreements are legally binding on both the parties. While making a settlement agreement the manger must give a minimum of 10 days time to Mike for considering the offer. Mike has to be provided with a form of financial payment with respect to the settlement agreement. It has to be notified to Mike that the agreement is entirely voluntary. The agreement must be open to negotiation by both the parties. The agreement can be raised at any time and there is no legal requirement in relation to it for instance a disciplinary process is not essential before offering a settlement agreement. The first step which the manager has to take with respect to the agreement is to speak directly with Mike about it. The offer must also be made in writing so that future misunderstandings can be avoided.
An employee can use the settlement agreement as evidence against the employer in tribunal proceedings (Tombs and Whyte 2013). If Mike rejects the offer of settlement by the managers it cannot be followed up and the employment condition has to be kept unchanged. There are highly technical rules in relation to the admissibility of settlement agreement in the tribunal. Two provisions regulate the admissibility of settlement agreement as an evidence in the tribunal which are Section 111A of the Employment Rights Act 1996 and common law principle of “without prejudice”. According to the principle Mike would not be able to use the settlement agreement against the employers if the agreement was genuinely made to settle an existing dispute between the parties.
With respect to TUPE if changes are to be made to the terms and condition of the employment contract by the employer only because of the transfer the changes are considered to be void. Previous even if proper reasons were provided with respect to the change it was considered to be void however the provisions have been repealed. Now changes can be valid if the main reason for such changes is an “Economic, Technical or Organizational reason entailing changes in the workforce” and such changes have been agreed by the employee and the employer. The employers can also change the terms of the employment if such change is authorized by the initial contract or in case a new requirement arises. For instance the organization has acquired a new client has has to make an adjustment in order to meet the need of the new clients. Any changes in relation to the terms of contract must be discussed with the employees. With respect to an ETO reason a change in contract terms can be held valid. An ETO reason indicates a valid business reason. The changes in the employment terms can only be done if such terms are primarily related to ETO reasons and not just a secondary part of them. In this case the change in pay day would only be done for cash flow purposes and administrative convenience. As there is no written contract with respect to the Zuzu employees the pay day can also be changed with discussion with the Zuzu employees.
Settlement Agreement
Redundancy refers to a kind of dismissal and occurs when the reduction of work force is required by the employees. Certain rights have to be provided to the employer if they are selected for the purpose of redundancy (Taylor and Emir 2015). These rights include Redundancy pay, notice period, consultation with employer, option to be shifted to a different job and time off to find a new job. Employees are generally entitled to statutory redundancy pay if they have been working for an organization for a period of more than two years. Employees are entitled to receive half weeks pay for each year in case if the employees are below 22, one weeks pay if they are under 41 and one and a half weeks pay if they are over 41. The length of the service is limited to twenty years. Any redundancy under 30000 is not taxable. There are a few exceptions to the rules of redundancy. These reasons include the offer of an employer to retain the employee and the rejection of the employee without any good reason for the alternative work provided. While selecting an employee for redundancy the mangers must use a fair method such as last in first out, self selection, disciplinary records, skills, qualification and appraisal marking. The selection may account to an unfair selection if it is done on the basis of gender, race, disability, marital statues, religion, age, health, whistle blowing and exercising statutory rights. The employers have the right to offer suitable employment to the employees. The job is suitable or not would depend upon its similarity with the other initial job, the terms of the job, the skills and qualification of the employees in relation to the job and the pay benefits including hours, location and status. The redundancy can be regarded as unfair dismissal in case the employers have an alternative job and do not provide it to the employers. Thus Hell’s Kitchen must offer the existing employees suitable jobs and if they are unable to do they have to provide the other rights discussed above to the employees. If case hell’s kitchen is unable to do so it would account to unfair dismissal.
References
Araujo, G.N. and Paugam, S., 2016. Work and Employment Precariousness: a transnational concept?. SOCIOLOGIA DEL LAVORO.
Hepple, B., 2013. Back to the Future: Employment Law under the Coalition Government. Industrial Law Journal, 42(3).
Heyes, J. and Lewis, P., 2015. Employment Protection Legislation and the Growth Crisis. In The British Growth Crisis (pp. 221-241). Palgrave Macmillan UK.
Law, J. ed., 2015. A dictionary of law. OUP Oxford.
Mangold v Helm (2005) C-144/04
Martin v SS Photay & Associates [2007] ET/1100242/07
Rubery, J. and Grimshaw, D., 2016. Precarious work and the commodification of the employment relationship: the case of zero hours in the UK and mini jobs in Germany. In Den Arbeitsmarkt verstehen, um ihn zu gestalten (pp. 239-254). Springer Fachmedien Wiesbaden.
Schmuecker, K., 2014. Future of the UK labour market. York: Joseph Rowntree Foundation.
Taylor, S. and Emir, A., 2015. Employment law: an introduction. Oxford University Press, USA.
The Employment Rights Act 1996
The Equality Act 2010
The Health and Safety at Work Act 1974
The Human Rights Act 1995
Tombs, S. and Whyte, D., 2013. Transcending the deregulation debate? Regulation, risk, and the enforcement of health and safety law in the UK. Regulation & Governance, 7(1), pp.61-79.
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