Derecho laboral Employment law
19/09/2011 Deja un comentario
A reading exercise. Allow yourself 12 minutes. (Answers below the text.)
(a) What type of situations does an employment lawyer work on?
(b) Do you think UK and Spanish employment law are similar? If so, why are they similar?
Read paragraphs 1, 2 and 3:
(a) Were your answers to Exercise 1 correct?
(b) Is it important for employment lawyers to be familiar with judge-made law?
(c) Which words or phrases are formal? Which are informal? dismiss, fire, sack, termination of employment.
Read the remaining paragraphs:
(a) True or false? In an unfair dismissal case the Tribunal may reverse the employer’s finding that the employee stole company money.
(b) True or false? In a race discrimination case the Tribunal may reverse the employer’s finding that the employee stole company money.
(c) True or false? If Miss Smith adduces evidence that shows she was dismissed shortly after she had told her employer she was pregnant, the employer may have to prove the dismissal was not pregnancy-related.
(d) Why has employment law grown in importance over the last few years.
(e) What does ‘settled out of court’ mean?
Employment Law in the UK Employment law regulates the competing interests of workers and employers. It is mostly statute law, although the common law is used to interpret and apply the statutory provisions. For example, most workers provide their services under a contract of employment, the existence of which may be disputed by an employer. In the event of such a dispute, the court or tribunal will use common law principles to determine the existence or otherwise of an employment contract, and its specific terms and conditions.
Employment lawyers advise on, amongst other things, employment contracts, restrictive covenants, recruitment procedures, equality (non-discrimination) policies, collective consultations, transfers of undertakings, pensions and dismissals. They must be familiar with domestic and European law, since the EU seeks to harmonise a number of employee rights across the member states.
Many employment disputes stem from the termination of a person’s employment. In layperson’s language, to terminate employment is to fire or to sack, or to dismiss. The law uses the latter term and speaks of ‘wrongful dismissal’ and ‘unfair dismissal’. Wrongful dismissal is a common law action for breach of contract, eg, the employer has failed to comply with the contractual notice period. Unfair dismissal is a creation of statute law. An employee who has worked for the statutory qualifying period –currently one year- enjoys protection from unfair dismissal. He or she can only be dismissed for one of five potentially fair reasons, which include conduct, capability and redundancy. Employment may be terminated by summary dismissal, ie, instant dismissal, or by dismissal with notice, ie, the employee works or receives wages for the contractual notice period. Summary dismissal may only be effected in cases of gross misconduct, common examples of which are fighting and theft.
In most cases the dismissal is expressly communicated to the employee. However, there are occasions when the dismissal is constructive (not expressed but derived from inference), ie, the employer breaches the employment contract in a way that entitles the employee to treat himself or herself as dismissed. An example would be an employee whose wages are cut by 25% without consent – a fundamental breach of contract.
All workers enjoy protection against unlawful discrimination on the grounds of sex, race, disability, religion or belief, age and sexual orientation. The latter three grounds are unlawful in UK law following the implementation of EU Directives. The last few years have seen a big increase in the number of unlawful discrimination cases, particularly complaints of harassment and pregnancy-related dismissals.
Complaints of unfair dismissal and unlawful discrimination are heard in the Employment Tribunal. When deciding an ordinary unfair dismissal claim, the Tribunal acts as an appeal court that reviews the employer’s decision. The Tribunal does not rehear the evidence that was part of the employer’s internal dismissal procedure. Rather, it examines the reasonableness of the decision to dismiss and the procedure used by the employer in reaching that decision. If the ‘reasonable employer acting reasonably’ could have dismissed the employee in the circumstances, the dismissal is fair. The Tribunal cannot and must not substitute its own view of the facts for those of the employer. In contrast, in a discrimination claim the Tribunal is free to hear and reach findings on all the evidence, and if the claimant establishes a prima facie case of discrimination, the employer must prove that it did not discriminate.
Twenty years ago the Employment Tribunal could not make a compensatory award exceeding £11,000. That upper limit was removed in discrimination cases in 1993/94 and later modified in unfair dismissal cases. These days the maximum possible award in an unfair dismissal case is £80,400, and there is no limit in unlawful discrimination claims. Consequently employment law has become big business. In 2010, the average award for unfair dismissal was £9,120, £19,499 for sex discrimination and £52,087 for disability discrimination. (And those figures do not reflect the high-value cases that are settled out of court.) In the past employment lawyers were the poor relations of the legal world, but now they are much in demand.
(a) They work on matters such as employment contracts, restrictive covenants, recruitment procedures, equality (non-discrimination) policies, collective consultations, transfers of undertakings, pensions and dismissals.
(b) UK and Spanish employment law are similar in several respects because both countries are member states of the EU, and the EU seeks to harmonise a number of employee rights across the member states.
(b) Yes, because the Employment Tribunal often applies common law principles when reaching its decision. (‘In the event of such a dispute, the court or tribunal will use common law principles…’)
(c) Fire and sack are informal; dismiss and termination of employment are formal.
(a) False. (‘The Tribunal cannot and must not substitute its own view of the facts for those of the employer.’)
(b) True. (‘…in a discrimination claim the Tribunal is free to hear and reach findings on all the evidence…’)
(c) True. (‘…if the claimant establishes a prima facie case of discrimination, the employer must prove that it did not discriminate.’)
(d) Because of the large increase in the size of financial awards.
(e) A case is settled out of court when the parties reach an agreement and the dispute is resolved before the tribunal hears the case or arrives at a decision.