EMPOYMENT LAW.edited

February 4, 2023

Introduction

The issues raised in this essay relate to employment issues. This research will heavily rely on the statutes that regulate employment law in the UK that include, including the Employment Rights Act of 1996, the National Minimum Wage Act of 1998, Employment Relations Act of 1999, the Maternity and Paternal Leave Regulations of 1999, and the Equality Act of 2010, (Horten, R. 2021). Therefore in answering the issues raised therein, this paper will extensively rely on the statutes mentioned above and case law that has been decided in the United Kingdom relating to the issues raised in each question.

Question a

The issue raised in this question from the fact pattern is whether Organic Health Foods can make changes in contracts without informing other contractual parties and the validity of the contracts therein. The agreement entered into between Organic Health Foods, and Covent Garden is a contractual relationship. A contractual relationship has two parties who agree to be bound by the contract. In the contract provided in the fact pattern, the relationship between Organic Foods and Covent Garden is an employment form of contract. Employment contracts need not be in writing and may be made orally between the parties. However, pivotal to note is that the employees must be provided with a written statement that provides the names of the employer and employee, the job specification or title, the pay rates offered in the job, holiday entitlements, payment intervals, disciplinary and complaints policies, working patterns, when the employment began, training entitlements, and whether the job is governed by collective bargaining. Employment contracts bestow rights and obligations upon the parties. The statutory rights of employees in employment contracts include the right to paid holidays, maternity leave, sick leave, right not to be unfairly dismissed, right to be paid at least the minimum wage by the employer, right to a written statement of the respective terms of employment, right to compensation if made redundant. An employer cannot change the main contract between them and the employee without the employee’s consent.

The employment relationship between an employer and an employee is governed by an implied duty where mutual trust and confidence are essential between the parties. The parties should not act in ways that are likely to damage the existing relationship of trust and confidence between the parties (Bingham, C, 2016). In the UK, the National Minimum Wage Act of 1998 as of April 2021 provides that the national minimum wage of employees between 16-17 years is £ 4.62  for employees between 18-20 is £6.56, for employees between 21-22 is £ 8.36 and for employees over 23 is £8.91. As prescribed by the National Minimum Wage Act, this minimum wage applies to all persons who have a contract to work personally, those working through agencies, and home-workers. It is illegal for any employer in the UK to reduce the prescribed minimum wages of employees in the United Kingdom without the employees’ consent (Williams, S 2017). The law provides that the respective employees in an organization must consent to the reduction of wages. Consequently, an employee who believes that they have been paid less than the prescribed minimum wage has a right to register a confidential complaint with HMRC. Additionally, section 10 of the National Minimum Wage Act provides that an employee must obtain a notice from their employer. The notice requests the employer to provide access to the employer’s records where an employee believes they have been paid below the prescribed national minimum wage. An employee paid under the minimum wage can file a contractual claim under Part II of the Employment Rights Act of 1996. Section 18 of the Act provides compensation to all employees subjected to dismissal or any other detriment in the course of employment. In Annabel’s (Berkeley Square) Ltd v Revenue and Customs Comrs (2009), Civ 361 Annabel’s Berkeley Square, who was the employer, deducted money offered to the employees in the form of tips from their wages. The employer’s argument in deducting the tips offered to the employees was that the employees’ money was never theirs they acted as agents for the employer. The court held that the tips given to the employees by the customers were not part of the employer’s money, and deducting it from the employees’ wages was illegal and a violation of their rights on minimum wage provided under the National Minimum Wage Act of 1998.

The facts relating to the case indicate that the Director of Organic Health Foods made changes to the employment contract with Covent Garden and set the minimum wages of employees between 16-17 years at £ 2.80, for 21-24 ears at £ 3.90. No salary or apprentices and zero-hour contracts would receive £ 5.00 per hour. This, as elaborately discussed above, primary importance accorded to the specification of the National Minimum Wage Act, the Director’s move is illegal under the law. Consequently, the National Minimum Wage Act and the Annabel’s (Berkeley Square) Ltd v Revenue and Customs Comrs stipulate that an underpaid employee is entitled to a remedy and to have their wages paid as stipulated by the National Minimum Wage Act of 1998.

Question b

The issue provided fact pattern is that Organic Health Foods prohibits Zuki Khan, who works as a cashier, from wearing her headscarf. Further, the company advises Zuki Khan that she is not entitled to any maternity leave and must use her annual leave. The issue arising from this case by Zuki Khan is employment issues. The first issue is on religious discrimination grounds. This arises as she is prohibited from wearing her headscarf.  

Discrimination based on a person’s religion and belief is illegal in the UK, and it is further listed as one of the protected characteristics under the Equality Act of 2010. This Act applies in all forms of employment, including providing goods, services, and education, the exercise of public functions, and the members of associations and their guests. The Equality Act further stipulates that it is not unlawful for an employer to specify the applicants for a job to have a particular philosophical belief or religion. For instance, a non-commercial religion or belief organization may directly restrict its job applicants to those who subscribe to certain beliefs or religions. Such conduct is correct under the law (Milner, S 2017). Religious discrimination arises where a person is discriminated against and consequently suffers a disadvantage based on the discrimination. Under the UK Equality Act of 2010, protection is given to all persons, those that have any religious or philosophical beliefs and those that do not subscribe to any religion or philosophical belief. Under the Equality Act 2010, a person can be discriminated against directly or indirectly.  Direct discrimination occurs when a person directly treats someone within a protected characteristic differently or less favorably to others based on the protected characteristic (Armstrong S. 2019). Indirect discrimination occurs where the employer puts in place rules that apply to everyone but, in a way, put a specific group at a disadvantage over the rest of the employees. The right of an employee to be protected from direct and indirect discrimination in the workplace was emphasized by the European Court of Human Rights in Eweida v United Kingdom. The court held that the British government should protect its citizens from religious discrimination. The court argued that the complainant had a right to manifest her religion and to have her rights protected by the government. 

On the second issue that Zuki Khan is not entitled to maternity leave and she should instead use her annual leave, the UK Maternity and Paternity rights are protected under the Employment Rights Act of 1996, the Employment Relations Act of 1999, the Employment Act of 2002 and the Work and Families Act of 2006. Under these legislations, any discrimination of an employee based on pregnancy or maternity-related issues is unlawful. An employee is entitled to 52 weeks of maternity leave no matter the employee’s period with the respective employer. Discrimination of employees on any protected grounds is prohibited in the workplace regardless of the stage of the relationship between the employer and the employee. The relationship stages include the application stage, recruitment stage, employment stage, and termination stage. The right to annual leave in the UK is protected under the Working Time Regulations of 1998. This Act provides that a full-time employee is entitled to 28 days paid annual leave. Similarly, an employee on a part-time basis is entitled to receive a pro-rata amount of leave.

Each employee has a right to maternity and annual leave from the above rules on maternity leave and annual leave. Further, depending on the specifications and the contract between the employer and the employee, an employee has a right to accruing annual leave. Therefore, from the facts provided in this case, Zuki Khan has a right to annual and maternity leave under the law. Consequently, the employer Organic Health Foods cannot take away her rights under the law.

Question c

The issue that arises from the fact pattern relates to the dismissal of Ezra Cohen and whether gender reassignment or depression are sufficient grounds to be recognized as sick leave. The Equality Act of 2010 provides that employees shall not be discriminated against on any listed grounds in their workplaces. The grounds include; age, sex, race, religion or belief, gender reassignment, sexual orientation, marriage, civil partnership, and disability. Consequently, from the Act, a person shall not be discriminated against because their gender identity is different from the sex assigned at birth. Under the Act, gender reassignment is listed as one of the grounds upon which employees shall not be discriminated against.  This protected characteristic covers people who have already undergone gender reassignment, are awaiting to undergo gender reassignment, and those who are undergoing gender reassignment to change their physical attributes or other sexual-related aspects. All transsexual people are mainly sharing the gender reassignment characteristic. There are different ways in which a person can be discriminated against based on gender reassignment. These include; direct discrimination, indirect discrimination, harassment, and victimization. Direct discrimination on gender reassignment occurs where one is treated harshly at work because of their gender identity. An employer should treat gender reassignment as they would treat an injury or illness.

An employee should not be paid less because of their gender reassignment, as doing so amounts to direct discrimination on the prohibited ground of gender reassignment. Indirect discrimination regarding gender reassignment occurs when an employer has policies that disadvantage transsexual people working in the organization (Cabrelli, D 2020). Harassment on gender reassignment occurs when an employee is humiliated for being transsexual. Victimization occurs where an employee is treated harshly in an organization because they have instituted a complaint related to discrimination on the grounds listed on the Equality Act of 2010. In Moore v Debenhams the Equality Commission settled this case for £ 9,000. This was after the claimant was informed that despite performing well in the interview and being the best, she was not chosen because she was transgender. The defendant in the case did not accept liability, but it made a settlement with the claimant and later reviewed its recruitment and equal opportunities policies.

An employee is entitled to leave and should be protected if their absence from work is related to their gender reassignment and transition.

Under the Equality Act of 2010, any mental health that has a substantial and prolonged effect of 12 months and above is considered a disability. Therefore under the Act, employees are entitled to take sick leave on the grounds of depression. Employees who are discriminated against based on their mental health can file claims against the organization because they have suffered discrimination. An employee who proves that they suffered a disadvantage and a detriment as a result of the discrimination on the listed grounds is entitled to compensation, exemplary damages, awards for injury to feelings, the employment tribunal may make a declaration or recommendation on the matter, interests on awards in discrimination, and a financial penalty imposed on an employer by the Employment Tribunal (Bernett, T et al. 2020).

In this case, therefore, the Director of Organic Health Foods illegally dismissed Ezra Cohen because gender reassignment and depression did not amount to valid sick leave. Gender reassignment and depression are grounds listed under the Equality Act employees are protected from discrimination. Further, from the discussion made herein, gender reassignment and depression should be treated by the employer as sick leave. Therefore, in this case, Ezra Cohen is entitled to compensation for being dismissed and discriminated against on protected grounds under the Equality Act of 2010.

Question d

This issue relates to the laying off and redundancy of employees, whether employees are entitled to join trade unions and whether employees should wear religious wear or jewelry representing their religion—the first issue on the laying off and redundancy of employees due to the Covid pandemic. Laying off employees working in an organization means temporarily sending home employees and might lead to the dismissal of the employees. Redundancy of employees refers to an employer reducing the number of employees in an organization because their services and jobs are no longer needed in the organization. Various situations may force a company to lay off, render employees redundant, or dismiss its employees and such circumstances include pandemics such as the Covid pandemic (Silva, J, 2021). Under the UK Employment & Labour Laws and Regulations of 2021, employees should be given notice of termination unless they are dismissed for gross misconduct.

Additionally, the Employment Rights Act of 1996 stipulates that employees are entitled to a fair reason of being dismissed. This dismissal is based on their capability to do the job, statutory basis, or some other substantial reason (Aylott, E, 2014). An employee who has worked for an employer for two or more years deserves to be notified before their employer terminates them. An employer who terminates an employee’s employment by following the lawful procedure under the law is justified for taking such action. In the UK, the contract between the employee and the employer may provide circumstances and instances upon which staff can be laid off (Aylott, E, 2014). Some of these instances include a national agreement with your company to lay off employees, and agreed arrangement entered into between the employer and employee to change the terms of their contractual agreement, an arrangement between an organization and a trade union to lay off employees, and custom and practice in the organization. Before employers lay off employees, they should consider advising them to take a holiday, work from home, and take up unpaid leave (Silva, J, 2021).

The second issue that arises from the fact pattern relates to employees joining trade unions. Each employee has a right to be a member of a trade union. This right is inseparable from human rights, and it is provided under the United Nations Universal Declaration Charter of Human Rights of 1948, the International Covenant on Economic, Social and Cultural Rights of 1966, the European Convention on Human Rights of 1950, the International Labour Organization Convention NO. 87 & 88 and the European Social Charter of 1961. The main aim and purpose behind the membership to trade unions is the promotion and protection of union members regarding issues that arise in employment (Guenole & Ferrar, 2017). The Employment Relations Act of 2004 amended the UK law that governed the establishment and the role of trade unions and industrial action. The UK government guarantees freedom of association to their members as it is their right to be members of trade unions and assemble. In Wilson and Palmer v the United Kingdom, (2002) ECHR 552, the claimants brought a claim against their employer concerning their discrimination because they joined trade unions and actively participated in the trade unions. In deciding the case, the court held that every employee has a fundamental right to join trade unions and to engage in activities relating to the trade unions, and to have their rights and interests protected in the course of their enjoyment of this right (Bernett, T et al. 2020). Trade unions have a right to disclose information relating to collective bargaining and be informed of collective redundancies.

The third issue that arises from the fact pattern is whether employees should wear religious wear or jewelry representing their religion. On this issue, the Employment Equality (Religion or Belief) Regulation of 2003 and the Equality Act of 2010 prohibit discrimination on religious grounds. The Equality Act lists religion or philosophical belief as one of the characteristics which employees should not be discriminated against. Further, it is imperative to note that the Equality Act provision on discrimination on religious or belief grounds protects both those who believe in religion and those who do not believe in religion against discrimination for their stand in matters of religion. An element of a person’s religion might mean wearing a particular piece of clothing or jewelry, such as a necklace. (Gowri Ramachandran, 2007) An employee can be directly or indirectly discriminated against for their religious wear or jewelry in the workplace. Indirect discrimination, in this case, may include the setting up of stringent policies that prohibit certain people from wearing religious wear or jewelry, and the policies put them at a disadvantage to other employees. In Eweida v the United Kingdom (2003) ECHR 37, the claimant claimed against British Airways Plc because the company had discriminated against her on the listed characteristic of religion or belief. In this case, British Airways had provided a stipulation that religious wear should be worn out of sight under the employee’s clothing. The European Court of Human Rights held that the UK government had failed to protect her right to not be discriminated against on religious and belief grounds.

On the first issue, as discussed, the Director must inform the employees that they are being rendered redundant or laid off based on the impact caused by the Covid pandemic. On the second issue, of employees joining trade unions, the section above has demonstrated that each employee has a right prescribed under the law to be a member and actively participate in matters relating to trade unions. On the third issue, Organic Health Foods should not discriminate against any employee on the grounds of religion.

Conclusion

This research has discussed in detail the various employment issues arising in each of the questions. It is imperative to note that the UK has enacted various legislations to protect employees from any form of discrimination in the workplace.

Recommendations

Organic Health Foods needs to adhere to the set legal requirements on the national minimum wage, allow employees to join and participate in trade unions, and protect employees from discrimination in the workplace based on any of the listed characteristics in the Equality Act of 2021.

Reference list

List of Statutes

Employment Rights Act, 1996.

The National Minimum Wage Act, 1998. 

The Employment Relations Act, 1999.

The Maternity and Paternal Leave Regulations, 1999.

 The Equality Act, 2010.

List of Books and Articles

Horten, R (2021) Core Statutes on Employment Law 2020-21, Red Global Press.

Milner, S (2017) Comparative Employment Relations Macmillan International.

Cabrelli, D (2020) Employment Law in Context, OUP

Silva, J (2021) Employment in Crisis the Path to better Jobs in a Post-Covid World Bank Publications.

Bernett, T: Saundry, R Fisher, V (2020) Managing Employment Relations (CIPD) Kogan Page

Bingham, C (2016) Employment Relations: Fairness & Trust in the workplace. Sage Publication.

Williams, S (2017) Introducing Employment Relations: A Critical Approach, OUP.

Aylott, E (2014) Employment Law (HR Fundamentals) Kogan Page

Armstrong S. (2019) The Essential HR Handbook: A Quick and Handy Resource for Managers, New Page Books.

Guenole N. Ferrar, J (2017) Power of People, The Learn How Successful Organizations Use Workforce Analytics To Improve Business Performance, FT Press Analytics.

Gowri Ramachandran, (2007) Freedom to Dress: State and private Regulation of Clothing, Hairstyle, Makeup, Tattoos, and Piercing.

List of cases

Eweida v the United Kingdom (2003) ECHR 37.

Wilson and Palmer v the United Kingdom, (2002) ECHR 552.

Annabel’s (Berkeley Square) Ltd v Revenue and Customs Comrs (2009) Civ 361.

Moore v Debenhams (Unreported).

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