employee and employer's laws and legislations

AS and A Level Miscellaneous

Title:

Name:

Organisation:

Date:

Distribution List: 1. Summary

2. Introduction

3. Analysis/Act/Contracts

3.1 UK Employee and Employers Duties

3.11 The Terms of the Contract

3.13 Termination of employment

3.18 Employment Rights Act

4. Analysis Information

4.1 Confidentially

4.2 The Data Protection Acts and Rights 1998

4.6 Sex Discrimination Act

4.9 Unfair Dismissal for pregnant Employees

4.10 Equal Pay

4.11 Race Discrimination

4.14 Disability Discrimination

4.18 Flexible Working

5. Conclusion

6. Recommendation

1. Summary This report contains information on employee and employer’s laws and legislations and a conclusion and recommendation for Jane who has been made redundant/dismissed.

2. Introduction The report in question is about current UK employees and employer’s laws and legislations. In brief context this reports will outline some of the most important issues found in the employee’s contract and what is the purpose of the employee, employer contact.

2.1 The purpose of this report is to analysis laws and legislations of an employees/employers contract and to determine a solution for Xplore LTD current problem.

2.2 The key issues and problems will be approached in this report by findings and evidence.

2.3 The creation of this report is written by C L Mulvey and will be produced for managerial employers of Explore and other personnel that have access to this report.

3. Analysis/Act/Contracts

UK Employee and Employers Duties

The following are current UK laws for an employee duty to their employer:

3.1 The duty to serve or to provide the personal services agreed under the contract

3.2 The duty to exercise due to competence and skill in the exercise of duties

3.3 The duty to exercise care in the performance of the duties

3.4 The duty of loyalty

3.5 The duty to obey lawful and reasonable instructions

The following are UK duties that the employer has to their employees:

The duty to pay wages and associated benefits
The duty to provide work
The duty to indemnify
The duty to ensure safety
To provide a safe environment with safe appliances and systems

The Terms of the Contract

Employment Rights Act 1996 – The employer must give a written statement of the main terms of employment within two months of the commencement of the employment to the employee
Failure to provide to written terms of employment the employee can go to an industrial tribunal to have the terms of the contract determined

Termination of employment

Notice – Depending on the selected business the notice to be given depends on the employees contract
Dismissal – With dismissal comes statuary claims to be eligible to this the employee must be employed by the employer is question and the employee must have evidence of the dismissal
Express dismissal – The contract of the employee is terminated by the employer without notice
Constructive Dismissal – The employee terminates the contract by certain conduct of the employer
Continuous employment – The employees employment is built up on a weekly basis which is then ended with a Effective date of termination (EDT) evidence of employment must be kept

Employment Rights Act – Reasons under the Act

Capability and Qualification – If the employee is unable to cope or is incapable of do his or her job then dismissal may be fair
If qualification applies this means if the employee is not qualified enough or has lied then dismissal may be fair
Misconduct – Includes lateness, absenteeism, and incardination, breach of safety rules or immorality. Investigations are usually needed in such cases because of the seriousness of the dismissal, its vital that employers may sure the employee is being dismissed on this particular ground
Redundancy – The employer must show reason of this dismissal it usually goes on the grounds of the employee’s employments ceases to exist. The selection of this process must be fair and done legally
Employment in contravention of the law – Employers must give evidence on this ground that the employee in question can not continue employment as it would be illegal to do so
Some other substantial reason – If none of the above apply to the employees dismissal then the grounds of dismissal will fall in this category

4. Analysis Information

Confidentially

4.1 The data protection act is for everyone its main purpose is to (a) protect individual privacy and (b) to protect legislation throughout the EU. Many private documents on individuals in the UK are paper based which at the moment cannot be accessed. In 2007 the UK will be adapting to EU legislation and all personal information stored on individuals will be accessed via computers which can be accessed by that individual in question

The Data Protection Acts and Rights 1998

Personal Data – Is data concerning a living person, it may include opinions also it is data concerning organisations provided it relates to individuals within that organisation only
Data Users – Are organisations or individuals who control personal data files, also they have files relating to an individual
Data Subject – Are those persons who are subject of personal data held on them
Date Protection Commissioner – The officer who supervises the enforcement of the data protection legislation

4.5.1 The rights of data subjects

People whose is ...

This is a preview of the whole essay

The Data Protection Acts and Rights 1998

Personal Data – Is data concerning a living person, it may include opinions also it is data concerning organisations provided it relates to individuals within that organisation only
Data Users – Are organisations or individuals who control personal data files, also they have files relating to an individual
Data Subject – Are those persons who are subject of personal data held on them
Date Protection Commissioner – The officer who supervises the enforcement of the data protection legislation

4.5.1 The rights of data subjects

People whose is stored are called data subjects. The Act sets up rights for people who have kept about them. You need to know these rights for the exam. They are:

A Right of Subject Access
A data subject has a right to be supplied by a with the personal data held about him or her. The data controller can charge for this: usually a few pounds.

A Right of Correction
A data subject may force a data controller to correct any mistakes in the data held about them.

A Right to Prevent Distress
A data subject may prevent the use of information if it would be likely to cause them distress.

A Right to Prevent Direct Marketing
A data subject may stop their data being used in attempts to sell them things (e.g. by junk mail or cold telephone calls.)

A Right to Prevent Automatic Decisions
A may specify that they do not want a to make "automated" decisions about them where, through points scoring, a computer decides on, for example, a loan application.

A Right of Complaint to the Information Commissioner
A can ask for the use of their to be reviewed by the who can enforce a ruling using the Act. The Commissioner may inspect a controller's computers to help in the investigation.

A Right to Compensation
The data subject is entitled to use the law to get compensation for damage caused ("damages") if personal data about them is inaccurate, lost, or disclosed

4.5.2 Responsibilities of data controllers: The Eight Principles

All must keep to the Eight Principles of Data Protection.

When you read about these, you may find them called "The Data Protection Principles". You may be asked about these in the exam. Remember a data controller is the nominated person in a company who applies to the data commissioner for permission to store and use .

The Principles start: -
For the personal data that controllers store and process:

It must be collected and used fairly and inside the law.
It must only be held and used for the reasons given to the .
It can only be used for those registered purposes and only be disclosed to those people mentioned in the register entry. You cannot give it away or sell it unless you said you would to begin with.
The information held must be adequate (enough), relevant and not excessive (too much) when compared with the purpose stated in the register. So you must have enough detail but not too much for the job that you are doing with the .
It must be accurate and be kept up to date. There is a duty to keep it up to date, for example to change an address when people move.
It must not be kept longer than is necessary for the registered purpose. It is all right to keep information for certain lengths of time but not indefinitely. This rule means that it would be wrong to keep information about past customers longer than a few years at most.
The information must be kept safe and secure. This includes keeping the information backed up and away from any unauthorised access. It would be wrong to leave open to be viewed by just anyone.
The files may not be transferred outside of the European Economic Area (that's the EU plus some small European countries) unless the country that the data is being sent to has a suitable data protection law. This part of the Act has led to some countries passing similar laws to allow computer centres to be located in their area.

For Jane’s argument

Partial exemptions:
Some personal data has partial exemption from the rules of the Act. The main examples of this are:

A has no right to see information stored about him if it is to do with his/her health. This allows doctors to keep information from patients if they think it is in their best interests.

Sex Discrimination Act

4.6 Sex discrimination on grounds of an individual’s gender, material statue is prohibited in recruitment and employment. However under SDA s7, sex discrimination may be allowed if the employment vacancy does require a specific gender to assist in the job for example in certain army position women are unable to join for specific reason and the same applies to some male cases

4.7 In context there are two forms or discrimination Direct and indirect. Direct discrimination occurs when a person is treated less favourably than another person of the opposite sex. Indirect is when a particular requirement is needed and that requirements causes indirect discrimination

4.8 When advertising for a job the employer must realise that they can not discriminate against men or women through advertising, for example a company can not advertise that they require a waiter as that term means they are discriminating against waitresses, the advertisement must advertise “waiter/waitress needed”.

Automatic Unfair Dismissal for pregnant Employees

4.9 It is unlawful to dismiss an employee on the grounds of them being pregnant; this is also classed as sex discrimination

Equal Pay

4.10 Due to the equal pay act 1970 men and woman are to paid the same amount in wages if they are in the same position whether they are a man or a woman, for example If one female and one male checkout employees at supermarket have the same job position they are to be paid equally until promotion of one of the employee, if this does not apply the supermarket is in breach of equal pay legislations 1970

Race Discrimination

4.11 It is unlawful for an employer to discriminate against someone’s race whether is being their race, nationality, ethnical background, religion or other, if this is done then the employer is breaking the race discrimination law

4.12 Discrimination is allowed if the job in context requires a race to take the position of the job, for example a Chinese’s restraint is allowed to advertise for Chinese people only because it’s a Chinese restaurants

4.13 Direct and indirect discrimination applies as well in the same context of sex discrimination but on the grounds of race

Disability Discrimination

4.14 Under the Disability Discrimination Act 1995 an employer or business is not allowed to discriminate in employment, advertising or recruitment about an individual’s disability, if so that business or employer is in breach with the disability discrimination act 1995

4.15 It is also unlawful to treat a person in the work force less favourable because they have a disability

4.16 Making adjustments to arrangements and work roles to stop the continuing role for a disabled employee is against the disability discrimination act

4.17 It is also important that the employer and selected business has met all requirements in and out of work for disabled employees and others

Flexible Working

4.18 From the 16th April 2003 employees with children under 6 or disabled children under 18 have the right to request work flexibility

5. Conclusion

After reading the recent report on a pass employee at Xplore named Jane I thought it would be wise of me to research on the current problem that has occurred. I have been advised by Xplore that Jane took maternity leave and gave the date of return on the 22nd January 2005, unfortunately Jane was unable to return to work on the given date (22nd January 2005) because she was suffering from post natal depression which some times does occur after pregnancy. Due to this Jane extended her leave beyond the maximum period of maternity leave under current legislations.

Under Jane’s contract of employment she had to attend the companies doctor for a general health examination, after the examination the doctor Jane sore would not discuss their findings nor the content of the report that was being prepared and sent to her employer.

Whilst still on sick Jane received a letter from Xplore stating that she was redundant on the basis on the length of absence and the doctor’s report.

The problem at the moment is that Jane still hasn’t received the doctor’s report from the examination and insists that she has been unfairly dismissed.

With the above facts I have been given I can only state what the law says about an employees/ employers rights and their rights in their contract that’s why I have provided in this report some legal laws and legislations of an employees/employers rights and contract rights. I can also personally give you my legal opinion on the matter that is backed up with UK laws and legislations.

With the doctors report its is prohibited by the UK Data protection laws that any paper based important documentation that involves an individual or business is handed over to the individual or business in question. This is done to protect the privacy of the person or business selected. This law is also protected by the data protection commissar. With this current law in place at the moment Jane is unable access the doctor’s report on the basis that the documentation is not computerised but paper based, in 2007 the UK Data protection act 1998 will under go the European data protection act which means any personal data collect on individuals and business such as important information and in this case medical reports and documents will have to be computerised as well as paper based, this means that if Jane still wishes to view her medical report in 2007 she will be able to access it legally due to the new European data protection act.

Also in question is the fact that Jane feels she has been unfairly dismissed. I cannot personally determine whether Jane was made redundant due to the medical report or if indeed she was unfairly dismissed because I do not have the authority to access such documentation, but I will provide relevant employment laws which could state her redundancy or her unfair dismissal. If Jane has been made redundant due to the medical report this would have to be on basis of capability and in some form of misconduct. If the medical report shows evidence that Jane is incapable of doing her job to satisfactory level due to depression then indeed Jane has been fairly dismissed. In the word of dismissal through misconduct this would only apply to the lengthily absenteeism through her illness. But dismissal through misconduct is often investigated so proof of Jane’s absenteeism is needed, but it is vital that you are aware that this kind of dismissal is serious in its matter and its vital that you are sure that dismissal is based on this fact as major consequences will occur if misconduct has been used inappropriately on the employee.

If Jane were to take her dismissal unfairly she would be able to place this case in two legal categories. The following are the categories in question with an explanation of why?

Sex Discrimination

Why – Jane could argue that Xplore was performing indirect discrimination because they are discriminating about the fact that Jane is unable to carry out particular requirements due to the fact she has had a baby and is now suffering from postnatal depression. This would be classed as sex discrimination because a man would not suffer from such an illness as women would.

Automatic Unfair Dismissal for pregnant employees

Why – It is stated in this act that “(a) the reason (or, if more than one, the principal reason) for the dismissal is that she is pregnant or any other reason connected with her pregnancy) This act clearly states unfair dismissal due to pregnancy or any other related problems, in Jane’s case is would be the connected reasons due to her post natal depression.

I have clearly stated the acts that could fall in Jane’s Xplores situation but if I was to be personally honest if the medical report states Jane is incapable of working then she has been made redundant on the fact that she is unable to work in the current condition at work, but if the medical report states otherwise then Jane has been unfairly dismissed on the basis of her pregnancy. If Jane seek legal advice because she feels she has been unfairly dismissed then this case would go to a tribunal because tribunals deal with work related incidents and legal problems.

6. Recommendation

I would advise you to make sure that you have based Jane’s redundancy on the medical report and nothing else as it could cause sieve problems in the future. If Jane does seek legal advice and this case does go to a tribunal I would recommend gathering relevant evidence and information. But its easier if you could settle this situation out of court, this might mean explaining more in dept the reason for Jane’s redundancy and even considering whether she might be able to return to work when she has overcome her post natal depression.

7. Evaluation

The data protection act and sex discrimination act is their to protect Jane and her rights and to enforce this legislation on the business selected, It important that theses two acts protect Jane because the data protection act will protect her because she will be able access her medical record so she will be able to determine what the real reason for her redundancy is whether its medical or due to the fact of her absenteeism. The sex discrimination act protect Jane because by law a company cannot discriminate against a persons gender in Jane’s case it’s the fact that she has post natal depression and medically a man cannot get post natal depression so in term the company in question is discriminating against Jane because she is a woman and she is suffering from a female depression. Its important for theses laws to protect Jane and other people because with out theses laws employees would have not rights and have problems in the work force.