University Degree: Employment Law
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- Marked by Teachers essays 1
This may vary from outreach programmes designed to increase the number of applications from members of groups perceived to be disadvantaged, through the provisions of training designed to promote competition on a level playing field with white males. To programmes which take account of the actual numbers performing such jobs, whether in the form of aims or targets, or in the form of quotas whereby a particular proportion of jobs in a particular grade are reserved for women or ethnic minorities.4 Women have always been in lower status jobs than their male counterparts.
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Jane encountered problems pertaining to contractual work relationship issues with Total Mechanic Management Services Pty Ltd (TMMS). The Common Law Tests (Also known as case law) is used to establish the following two categories.
However, a series of control tests shall determine that aspect. 1. The Control Test consists of two elements, which are the nature, and degree of control the employer has towards the employee. Federal Commissioner of Taxation v J Walter Thompson (Aust) Pty Ltd (1944) 69 CLR 227, states that the producer had exercised great details of control over how the artists must perform during rehearsals and final performance. In relation, TMMS has exercised great control on Jane because she must set precedence to TMMS's call over other private calls. Zujis v Wirth Brothers Pty Ltd (1955)
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Discuss and analyse the legal concept of protected trade dispute. Explain also whether, in the light of the most recent financial climate (credit crunch, recession, depression), the right to strike is still a persuasive means of protection o
for the good of employees and not in conspiracy against the trade, which they still need to adhere to, too this day under TULRCA s.11. The implementation of Art 11 of the European Convention of Human Rights guarantees the right to freedom of association. This through the Human Rights Act 1998 in the UK distinguishes the common law policy of the trade unions as being restrictive on trade. The trade unions have free rein over the rules in which they adopt as long as they stick to numerous statutory requirements.
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This essay will consider the growth and history of agency workers rights in the UK, as well as the problem of Temporary Agency Work Regulation 2010. The study will be concluded by the examination of key cases and statutes.
This arrangement causes no difficulty under labour law, where objective is establishing the appropriate balance in the relationship between employee and employer6. This means that both sides should take into account rights and duties of opposite party. However, there are other forms of arrangement which are entered into to exploit the flexible working nature of agency relationships. In the case of Consistent Group Ltd v Kalwak and Others7 the workers were Polish nationals who had been recruited in Poland by the agency and who were provided with work for a food processing client.
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Selwyn states that it is difficult to categorise working individuals because of the complexity of modern organisation, and despite the arrangements being convenient for those concerned, the lack of clear categories can hinder legal analysis. Identifyin
The courts have developed a series of tests to help distinguish between the employed and self employed. The numerous tests that have been developed are evidence that it is difficult to categorise working individuals. One of the main reasons for the numerous tests is the speed in which employment changes, the courts have to constantly update their methods in order to accommodate the change. I will evaluate the tests in chronological order as this is a perfect example of the courts difficulty in categorising working individuals in the ever changing employment environment.
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In that case, the House of Lords held by a majority, with Lord Keith dissenting, that on giving a reference to an ex-employee, in response to a request by an identified prospective new employer, the former-employer owes a duty of care to the former-employee, that the breach can give rise to a claim for pure economic loss and that the possibility of such a claim is not excluded by considerations of public policy which favor candor in references. In the spring case, the reference (for a man who was employed in the financial services industry)
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The essay will seek to examine and conclude if Trade Unions, in a twentieth century, still play a pivotal role in the work place. I will consider a number of factors that have shaped employment law today and have somewhat changed the relationship between
This trend furthered itself and in 2008 there was a further decline in membership by 0.6% 2. This apparent decline has been visible for the past thirty years. I shall now move onto describe why this decline has happened and to examine whether trade unions still are important in industrial relations. One reason for this apparent decline in membership can be attributed to the changing nature of the employment contract. The nature of employment law has changed and the main focus is now on the individual rather than the trade union.
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Expressed terms are written into the contract and agreed by all in question, whilst implied terms are not written. Implied terms of the employer refer to issues such as dealing with grievances promptly. Frankie's employer (the landlord) failed to take any action towards rectifying the problems highlighted of the sexual insults raised. When a complaint was made by Frankie, he "laughed it off." This would be seen as an inappropriate response to a serious allegation by the tribunal. There is a duty to exercise reasonable care for an employees' physical and psychological well being. The landlord is guilty of failure to care for Frankie's psychological well being as he made out that she was the one with the problem by saying she was so sensitive.
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Lorenzana's lawyer, Jack Tuckner, states, "Does she have to manage her wardrobe so these men can manage their libidos?" He also added that, "Her male bosses and colleagues were acting immaturely". Citigroup has failed to comment on the allegations (NYTIMES, 2010). The U.S. Equal Opportunity Commission (EEOC) defines sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature...when submission to or rejection of this conduct explicitly or implicitly Dressed to Distract 3 affects an individual's employment, work performance, or creates a hostile or offensive work environment" (U.S.
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legal protections, workers asserted the voice of social justice through collective unions.15 The period witnessed considerable unrest with collective strikes, culminating in the Maritime and Shearer's Strikes of 1890 and 1891.16 The Shearer's Strike demonstrated how far workplace relations can degenerate when there is no fair statutory framework to establish legally enforceable rights, including the fair arbitration and conciliation of disputes.17 During the Shearers' Strike, a military force with artillery was deployed to Barcaldine for use against the shearers,18 strikers were tried and jailed,19 the union was depleted of funds, and workers were forced to ultimately accept terms offered by
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Employee Status - In order for Carl to be able to bring a claim of unfair dismissal against Baker-Rags Ltd he has to establish both that he is an employee of Baker-Rags and that he was unfairly dismissed.
If however, a person's salary is paid by way of a third company, an agency perhaps, then this is indicative of an employment relationship not existing. These three tests mentioned so far and by no means in and of themselves conclusive evidence as to the employment status of a person, they are merely indicative. However, the fourth test mentioned seems to have developed a status within employment law as an irreducible minimum - a requirement in all employment contracts5 as it is an irreducible minimum.6 * Mutuality of Obligations: as a basic view mutuality requires an employer to give work, and an employee to carry out said work.
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contains a provision which (however expressed) states that the parties intend that the agreement be a legally enforceable contract. In order for such agreements to be legally binding on the individual employee they need to be incorporated in the employment contract of each member of the work force3. However the appropriateness of the term for inclusion can cause some confusion, the general application seems to be that procedural terms, such as a redundancy selection process are not appropriate4, where as substantive terms such as employees hours or rates of pay need specific incorporation into the employee contract.
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Zephyr Autos has a job security agreement with UCW which states that discretionary bonuses are payable for good performance. Albert was informed by Barry that his bonus had been discontinued as he has not met his sales targets in the last six months. So the issue here would be if Albert would have a right against Barry's decision on discontinuing his bonus and if Barry could possibly be facing legal issues in regards to his actions. Zephyr Autos have a job security agreement with UCW containing a seniority agreement which stipulates that "selection for redundancy will be made on the basis of seniority with the company on the basis of last in, first out".
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Employment Law Scenario. In this scenario there are many issues that are relevant in employment law. The most responsible person in the organisation is Mr Gervais. As an employer Mr Gervais has many responsibilities, duties and issues to overcome
See Pickford v ICI in that case turned out that employee was suffering from Repetitive strain injury and the employer has duty of care to provide safe equipment to all employees (in this case - appropriate chairs) under the statute of Management of Health and Safety at Work Regulations 1999. It is also employers duty to prevent employees having illnesses from high glare computer screens which are used in the company Ricky Gervais & Co Ltd. (The Health and Safety (Display Screen Equipment)
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- 2 - The Advisory Conciliation and Arbitration Service's publication 'Bullying and Harassment at Work: Guidance for Employees' and the Equal Opportunity Commision (EOC) and European Commission codes of practice give more detailed guidance as to what constitutes harassment (and are seriously relied on by those applying the law, which is at tribunal). The law also stipulates (at s.41 SDA) that the employer is vicariously liable (i.e. will be liable for such unlawful acts of his employees even where he does not know that they are occurring) unless he has a 'reasonable steps' defence (as provided for at s.41(3) SDA.
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In Serco Limited v Blair and others, the EAT focused on the issue of control. Agency workers brought claims for unfair dismissal against the company hiring them. EAT held the workers were under the control of the company and carried out work at the company's order and subject to disciplinary proceedings, the intervention of the agency prevented the necessary relationship between the client company and employee. In Iqbal's case it seems that if the agency doesn't intervene he could be classed as an employee.
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Once unfair dismissal is proven, the burden of proof shifts on the employer to show the reason for dismissal. Dismissal can be fair s. 98 (4) ERA 1996, where the employer acts reasonably in all circumstances. All unfair dismissal claims are enforced in employment tribunal under s. 111 (1) ERA 1996. In this case the employer may seek to show incapability under s. 98 (2) as a fair reason for dismissal by claiming that Will continuous mistakes affected his work. Incapability also includes 'skills' under s. 98 (3), possibly the number of mistakes can demonstrate lake of skills. Will was expressly dismissed s.
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From this we can see that agency workers do have a form of legal protection regards pay, as there are set rules within the law, depending on the type of work being done - if hourly rate or per block of work. The Working Times Regulations set out the time requirement for rest breaks, holidays and working hours, and it is the employers responsibility to ensure that the time regulations are met. Unless an agency worker is self employed - running their own business- they are covered under the Working Times Regulations.
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Explain what protection if any the law of unfair dismissal and the law of discrimination offer to him. (50% of the marks) In the situation described, certain legal rights may be available to Alex under the law of unfair dismissal. Under ss. 94-132 of the Employment Rights Act 1996, every employee has the right not to be unfairly dismissed. Although Alex has not yet been dismissed, it is likely he could be for the reason of retirement, which falls under one of the potentially fair reasons of s. 98(2) of the Act. The first question to consider in this type of dismissal is whether the employer can show that the reason is retirement as defined by the ERA, ss.98ZA-98ZE.
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with his less favourable treatment of her." 5 There is adequate prima facie evidence from your situation to indicate that you have been directly discriminated against in relation to promotion/re-grading on the basis of gender in terms of section 6(2) of the Employment Equality Acts, 1998-2004 contrary to section 8(1)(d) and section 8(7) of those Acts, which transpose the European Council Directive 76/207/EEC (as amended by Council Directive 2002/73/EC)6 and Council Directive 92/85 for the equal treatment of pregnant workers.7 I will explain the nature of this discrimination, how it applies to your situation and the possibility of you succeeding with a claim by referring to the appropriate legislation and related case law.
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It is a subject which engages the public's attention and opens ground to many controversies. It is a violation of one of the basic ethical principles. The key stakeholders in the workforce include employees and employers and potential employees. They have interests and power within the organisation which includes job satisfaction and health and safety practices. However, when an individual is affected by some form of discrimination it can affect the companies' shareholders as their reputation and image can be ruined and their interests include mainly making profits and expressing interest in share prices. The employee's family and friends may have been greatly affected by this situation too, as the partner may be the 'breadwinner' for the family.
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This is clearly referred to in the sixth principle that "Personal data shall be processed in accordance with the rights of data subjects under this act" (Bainbridge, 2000, Introduction to Computer Law). This is perhaps one reason why "vital information on suspects was routinely thrown away because senior officers misinterpreted the Data Protection Act." (www.Guardian.co.uk Q&A Data protection Act an the Police 18/12/2003). The police force was abiding by what was written in the act and the reason why the information was eliminated because of the fact that the records were not obtained for employment vetting purposes that they were lawfully erased which coincides with the second principle.
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They cannot be punished due to lack of knowledge. Brett L.J stated in LAGUNAS NITRATE CO V LAGUNAS NITRATE SYNDICATES that: 'A director must be guilty of negligence as would make liable an action. Mere imprudence or want of judgement is not negligence. It must be negligence that makes man liable in point of law'2 This is seen in: RE BRAZILIAN RUBBER PLANTATIONS AND ESTATES LTD (1911) CH 425 A rubber company made serious losses in Brazil as directors had limited knowledge and skill.
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Salomon have no liability in it.9 This basically means that as a result of incorporation, a company will be a legal entity distinct from its members where it would bear and enjoy different obligations and rights from its members. Limited Liability As noted, limited liability is a consequence of separate personality. A limited liability company will have its own pool of assets which are separate from the personal assets of its members and these members will not be liable or whatsoever towards the company's obligation.10 Of course, there are other benefits or consequences of legal personality.11 Namely, the company conducts
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