Discussion
Introduction
The employment law can be regarded to be a massive part of the legal structure. The employment law encompasses an entire multitude of the topics, which are encompassed in the employment relation. In United Kingdom, the Employment Law actually deals in relation to the employment associated activities, scope, range and restraints. It should be noted that the anti-discrimination statute or legislation also developed and upgraded where several sensitive judgments transformed and modified the employment law every year. The new regulations, rules, treaties and directives always give effect to a certain path over the international as well as national employment law. There can be said to be 3 primary sources of the employment law of the United Kingdom, which includes the statute, the common law, and the European law (which further encompasses the European Directives as well as the decisions that are forwarded by the European Court of Justice). Certain specific statutes in this regard can be said to be the Equal Pay act of 1970, the Employment Rights Act of 1996 and others. As every employee in the United Kingdom work as per an employment contract with the concerned employer, hence, the common law (specifically the contract law) establishes the legal foundation of the employee/employer relation. It should be noted that certain compulsory statutory or legal employment protection rights shall be applicable irrespective of any contract. This essay shall critically discuss the regulation and role of Employment Law in United Kingdom.
In accordance to Wedderburn, the conception relating to the ‘floor of rights’ in the labour law gives rise to a definite meaning, which can be said to be the provision of the ‘minimum standards’ by the legislation in relation to the employment contract, which actually acts as a base or ‘floor’ upon which the collective bargaining is intended to shape. Firstly, the primary details of ‘floor of rights’ comprises of the laws that lays down certain rudimentary conditions and terms, specifically, the minimum wages, the maximum working hours as well as the safety and health standards. Secondly, laws are present regarding the suspension as well as cancellation of the employment contract itself, which mainly regulates lay-off and sickness, the daily payment of the wages, the ‘unfair’ or unjust dismissal, the unemployment benefits as well as redundancy. Thirdly, the law relating to ‘floor of rights’ may provide particular or extra protections in relation to specific groups of employees or workers, so that the socially unwanted discrimination can be eliminated. This kind of laws mainly include the laws providing protection to the officials and union members from any kind of dismissal, providing protection to the pregnant workers, as well as criminalizing and banning discrimination one basis of race, sex, disability and nationality (amongst others). Therefore, the discussion regarding the UK employment law shall be made in regard to the above stated instances.
The first part of the ‘floor of rights’ should be considered, which relates to safety and health standards, wages and working hours. It should be noted that numerous injuries (and even deaths) of the workers transpire at the place of work. Every year the government makes an attempt to give effect to some kind of step in order to provide protection to the workers concerning such kind of issues. The government is trying to give rise to an awareness regarding the safety and health standards at the workplaces. The statutory regulation entity takes action as well as gives criminal sanction for any kind of disregard concerning the rules and guidelines at the workplaces. It has also been ensured by the government that the injured workers or individuals receive their due compensation. It should also be noted that the legislative body of United Kingdom as well as the European Union considers new regulations and rules for the purposes of safety and health awareness under the course of the employment.
It should be mentioned that the employees shall be able to claim for compensation or damages against employers on specific grounds of liabilities. A general responsibility of an employer is the duty to take proper care in order to protect the workers from any kind of injury at the workplace. In the case of Matthews v. Kuwait Bechtel Corporation [1959] 2 Q.B., it had been specified that if any employee suffers any injury outside the nation, while being on the course of the employment, then that employee shall be able to claim compensation for such injury. It was also specified that an employee may give effect to an action based either upon tort or upon the express contractual terms, however, an implied term shall be considered that the employer had a responsibility to take proper care. Another relevant in this regard can be said to be the case of Paris v Stepney Borough Council [1950] UKHL 3, where it was decided that the employer failed to take proper care of the employee even after knowing about the shortcoming of the employee, and hence, the employer was held liable for the injury suffered by the employee. In the case of Wilsons and Clyde Coal Ltd v English [1937] UKHL 2, it was any kind of liability, which may arise in the course of the employment, shall lie upon the employers. However, in the case of Bradford v Robinson Rentals Ltd [1967] 1 W.L.R. 337, it was stated that an employer could be held liable for any foreseeable injury of an employee. In the case of Johnstone v Bloomsbury Health Authority [1992] QB 333, it had been held that an employer cannot ask or force an employee to work for excessive hours as it might cause damage or harm to the heath of the employee. The term stipulating such excessive working hours shall be regarded as an unfair term. It was specified that an employer shall be under a common legal duty (of care) to give effect to reasonable steps for ensuring safety in relation to its employees.
In regard to the second part of ‘floor of rights’, the unfair or wrongful dismissal of employees should be considered. Any unfair or wrongful dismissal can be said to be a dismissal of an employee in the absence of any valid or reasonable ground. The existence of such wrongful or unfair dismissal gives rise to a lot of complexity and challenges in the job market. Even the common law nations (like United Kingdom) are faced with such issues. However, an aggrieved employee shall be able to claim specific performance as well as injunction (in front of a proper court that shall have the jurisdiction) in order to recuperate his or her right to work. In the case of Pepper v Webb [1969] 2 ALL ER 216248, it was held that no wrongful or unfair dismissal has taken place because the concerned employee was not obedient and ignored the lawful and reasonable instruction that was given by the employer. The dismissal was considered to be valid. Another pertinent case in this regard would be the case of Hill v CA Parsons & Co Ltd [1972] Ch 305, where injunction and specific performance was ordered to the employer in favor of the employee because it was ruled that a long tenured employee cannot be dismissed from the employment based upon silly and unreasonable grounds. Hence, such dismissal was considered to be unfair. It should be noted that section 95(1)(c), as provided in the Employment Rights Act of 1996, specifies about the constructive dismissal. The provision states that an employee shall be considered to have been dismissed where the employee cancel the specific employment contract in the situations where the employee has the entitlement to cancel it without any notice due to any unfavorable conduct by the employee. In the case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, the decision had been forwarded by Lord Denning M.R based upon the contractual test as well as unreasonableness. It was confirmed by the court that the employees are faced with so much stress and pressure regarding the perpetuity of their employment, and hence, it was argued by the court (based upon the contractual teat) that the employees did not violate any condition or term in the course of the employment, thereby resulting in no dismissal.
In regard to the third part of ‘floor of rights’, discrimination (on grounds of sex, disability and others) against employees should be considered. In accordance to Equality Act of 2010, there can be said to be 2 kinds of discrimination that may arise at any workplace. One is the protected characteristics (sections 4 to 12), which includes discrimination based upon age, disability, pregnancy, race, religion and sex. The second one is the prohibited conducts (sections 13 to 17), which includes harassment, victimization, and direct and indirect discrimination. It must be mentioned that race discrimination and sex discrimination have been prevalent in the employment law of United Kingdom and are regarded as very big challenging issues. For instance, in the case of Mandla v Dowell-Lee [1982] UKHL 7, it had been held that the Sikhs are regarded as a specific ethnic group and any kind of discrimination against shall be considered to be a race discrimination amidst the employer and the employee. Another significant case in this regard shall be the case cited as Jepson and Dyas-Elliott v the Labour Party and others [1996] IRLR 116, in which it was pointed out by the court that a discrimination transpired amidst 2 groups or assemblages and the particular discrimination favoured only the female groups or assemblages. It was specified by the court that such kinds of sex discrimination would be completely illegal in any political party.
Recently, the primary issue in connection to employment law had been the employment status of the employees, that is, whether the workers should regarded as employees or as independent contractors. In this regard, a chief case can be said to be the case of Uber BV and others v. Aslam and others [2021] UKSC 5. In this case, it was held by the Supreme Court that the Uber drivers shall be considered to be ‘workers’ as per section 230(3) of Employment Rights Act of 1996 and, hence, they shall have the entitlement to national minimum wage as well as paid holidays, amongst the other things. Another landmark case in this regard is the case of Royal Mencap Society v. Tomlinson Blake [2021] UKSC 8, where it had been held by the Supreme Court that the particular care workers who are only mandated to assume the overnight ‘sleep-in’ shifts as a portion of their specific jobs, shall not have the entitlement to receive the payment regarding the national minimum wage in connection to the night-shift period (as time when they are actually asleep). It had been held by Supreme Court that the specific time any worker actually spends sleeping in the course of a ‘sleep-in’ shift shall not be counted for the purposes of ‘national minimum wage’, just the time that they actually spend wide-awake in relation to the work in the course of that shift, shall be counted.
Conclusion
In conclusion, it can be said that the employment law of the United Kingdom mainly encompasses firstly, the laws relating to the minimum wages, the maximum working hours as well as the safety and health standards; secondly, the laws relating to employment contract the ‘unfair’ or unjust dismissal, the unemployment benefits as well as redundancy; and thirdly, the law relating to discrimination one basis of race, sex, disability and nationality (amongst others). This essay has provided a critical discussion regarding the UK employment law in regard to the above stated instances. It should be mentioned that the employees shall be able to claim for compensation or damages against employers on specific grounds of liabilities. It must also be mentioned that any unfair or wrongful dismissal can be said to be a dismissal of an employee in the absence of any valid or reasonable ground. Discrimination based upon age, disability, pregnancy, race, religion and sex shall be prohibited.
Issue
The main issues are the following: –
- What are the obligations that Easy Klean shall have in the given situation?
- What rights and remedies can be availed by Jemima?
Rule
Section 18, as provided in the Equality Act of 2010, states that an individual shall be considered to have discriminated against any female if, during the protected or safeguarded period in connection to pregnancy of the female, the individual treats her in an unfavourable manner (a) due to the pregnancy, or (b) due to the illness that the female is suffering as a consequence of it. Section 13, as provided in the Equality Act of 2010, states that a person shall be able to make a specific claim in respect of the Employment Tribunal for the purposes of direct maternity and pregnancy discrimination if it is actually believed by that person that she has been treated in a less favourable manner due to because the fact that she is pregnant or due to the fact that she has taken, or intends to take a maternity leave (such issue would usually be regarded as a direct sex discrimination claim).
The case cited to be Thompson v Scancrown Ltd [2021] should be considered as a relevant case in relation to the provided circumstance. In the case specified above, when a female was not given flexible work shift by the employer subsequent to her pregnancy, it was ruled by the court that an indirect discrimination had been caused and consequently, the female had been awarded the necessary compensation or damages.
In Prosser v Community Gateway Association Ltd [2021] 5 WLUK 588, it had been stated that the employers shall be required to consider the individual separate circumstances in a careful manner and conduct an appropriate and a proper risk assessment or evaluation prior to taking any kind of action in connection to the pregnant employees, based upon the grounds of safety and health.
In the case of Shipp v City Sprint UK Ltd [2021], it was said that the employers should afford similar opportunities in respect of every employee regardless of whether the employees are on the maternity leave. Any specific condition that may be applied in relation to their employment should not result in their disadvantage due to their sex or due to their absenteeism from the workplace.
Application
In the provided scenario, Jemima is met with an unfavourable behaviour from her employer after she tells the employer about her pregnancy.
Applying section 18 of Equality Act of 2010, the employer shall be considered to have discriminated against Jemima because the employer treated her in an unfavourable manner (a) due to her pregnancy. Applying section 13 of Equality Act of 2010, Jemima shall be able to make a specific claim in respect of the Employment Tribunal for the purposes of direct maternity and pregnancy discrimination because she has been treated in a less favourable manner due to because the fact that she is pregnant or due to the fact that she has taken, or intends to take a maternity leave.
The case cited to be Thompson v Scancrown Ltd [2021] should be considered as an applicable case in relation to the provided circumstance. Applying the case specified above, an indirect discrimination had been caused by the employer of Jemima because her employer behaved in an unfavourable manner with her after hearing about the pregnancy. Hence, Jemima should be awarded the necessary compensation or damages.
The case quoted to be Prosser v Community Gateway Association Ltd [2021] 5 WLUK 588 must be regarded as an applicable case in relation to the given situation. Applying the case stated above, it must be stated that the employer of Jemima was required to consider the individual separate circumstances of Jemima in a careful manner and he should have conducted an appropriate and a proper risk assessment or evaluation on the grounds of safety and health (which he did not) prior to behaving in an unfavourable manner with Jemima.
Applying the case of Shipp v City Sprint UK Ltd [2021], the employer of Jemima failed to afford the proper opportunity in respect of Jemima. The specific condition that was being applied in relation to the employment of Jemima was certainly result in her disadvantage due to her sex or due to her absenteeism from the workplace.
Conclusion
To conclude: –
- Easy Klean shall be granted with an injunction to let Jemima be on maternity leave.
- Jemima can demand compensation from her employer for such unfavourable conduct and may ask for an injunction in such regard.
Bogg, Alan. Labour Law Is a Subset of Employment Law” Revisited.” Dalhousie LJ 43 (2020): 479.
Bradford v Robinson Rentals Ltd [1967] 1 W.L.R. 337.
Employment Rights Act, 1996.
Equal Pay Act, 1970.
Equality Act, 2010.
Hill v CA Parsons & Co Ltd [1972] Ch 305.
Jepson and Dyas-Elliott v the Labour Party and others [1996] IRLR 116.
Johnstone v Bloomsbury Health Authority [1992] QB 333.
Mandla v Dowell-Lee [1982] UKHL 7.
Matthews v. Kuwait Bechtel Corporation [1959] 2 Q.B.
Paris v Stepney Borough Council [1950] UKHL 3.
Pepper v Webb [1969] 2 ALL ER 216248.
Prosser v Community Gateway Association Ltd [2021] 5 WLUK 588.
Royal Mencap Society v. Tomlinson Blake [2021] UKSC 8.
Shipp v City Sprint UK Ltd [2021].
Thompson v Scancrown Ltd [2021].
Uber BV and others v. Aslam and others [2021] UKSC 5.
Western Excavating (ECC) Ltd v Sharp [1978] ICR 221.
Whiteside, Noel. “Before the Gig Economy: UK Employment Policy and the Casual Labour Question.” Industrial Law Journal 50.4 (2021): 610-635.
Wilsons and Clyde Coal Ltd v English [1937] UKHL 2.
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