Employment Status of Vulnerable Workers - Case Study Example

Employment Status of Vulnerable Workers Discrimination can occur due to various reasons, such as colour, race, nationality, or ethni of a person1. The Race Relations Act 1976 deals with different forms of discrimination, based on race2. This Act prohibits direct or indirect discrimination, harassment, and victimisation of a person because of that person’s race. Subsequent legislation, such as the Race Relations (Amendment) Act 2000, further extends the area of applicability of the 1976 Act. The 2000 Act prohibits the police and public authorities from indulging in discriminatory treatment, and requires them to promote racial equality3. The following discussion shows that vulnerable people are disadvantaged, on several occasions. In Clark v Novocold, the Court of Appeal had stressed the appropriate standard for determining disability discrimination. The Court stated that the dismissal of a disabled person, who had stayed away from work, due to illness, was to be compared to the treatment that would be accorded to a non – disabled person. In this case, the plaintiff Clark had been dismissed from service on charges of having availed himself of long periods of leave, due to the sickness caused by his disability4. The Court held that if an employee was not disabled, then that employee would not have abstained from work, due to illness resulting from disability. Consequently, such an employee would not have been dismissed. Taking this into account, the Court of Appeal ruled that Clark had been subjected to disability discrimination5. The test established by the Court of Appeal, in Clark v Novocold, provided considerable protection to the disabled employees. However, this important test, which had prevented the exploitation of the disabled, was overturned by the House of Lords decision, via its decision in Lewisham. The House of Lords decision, required a comparison test to be conducted, which would compare the treatment accorded to a disabled person with the treatment provided to a non-disabled person, under the same circumstances6. This inclusion of the clause of under the same conditions has proved detrimental to the cause of the disabled. With this decision, the courts have to examine cases of dismissals on the grounds of ill-health with the application of the appropriate comparator. The disabled and dismissed employee’s situation will be compared to a non – disabled employee, who had been dismissed for being absent for a similar period. Obviously, any concession towards disability of the employee will be ignored. Consequently, a grave injustice will be rendered to the disabled employee. A comparison between a disabled employee and a non – disabled employee will provide information, as to whether the disabled employee had been treated detrimentally. The comparator must include the same circumstances that had resulted in the dismissal, such as long period of absenteeism, on account of illness. In most of the cases this will not occur. This makes it very difficult to establish claims of disability discrimination7. However, some measure of relief can be obtained from the court, if it can be established that the employer had failed to make reasonable adjustments to accommodate his disabled employees. Under the test established in the case of Clark, a proper comparator has to be used to determine disability discrimination. Proper comparator, in this context connotes a non-disabled person and the treatment given to him. If a disabled employee is dismissed on the grounds of absenteeism due to sickness, then it is necessary to determine whether the same punishment would have been imposed on a non – disabled person for the same reason. However, the Lewisham test has supplanted the test specified in Clark8. As a consequence, the courts are required to compare the treatment meted out to a disabled employee with that accorded to a non-disabled employee, under the same circumstances. The decision in London Borough of Lewisham v Malcolm was of great significance in the area of employment matters, despite the fact that it was not an employment case. In this case, the defendant had breached the lease agreement by sub – letting a property without the prior permission of the Council. The plaintiff had the defendant evicted from the property. The defendant was a patient of schizophrenia, and was not aware of the legal consequences of his act of sub-leasing the property9. It was held by the House of Lords that as any individual who had sub leased the accommodation, in the absence of proper authorisation, would have been evicted; there was no discrimination on the basis of disability10. This decision of the House of Lords, effectively undid the long established test relating to disability discrimination, which had served to protect the disabled. As such, this decision proved to be of great use to employers, who could circumvent legal action resulting from discrimination against the disabled, by merely establishing that their action would have been the same, even in respect of individuals without any disability. In Coleman v Attridge Law, the issue was discrimination against a person on the grounds of that person’s association with a disabled person. Mrs. Coleman’s son was seriously disabled and needed her care, as she was the sole carer. At work, she was subjected to derogatory remarks, and was even termed a lazy employee. Not surprisingly, she claimed that she had been subjected to harassment and discriminatory treatment by her employer, solely due to her association with her disabled son11. Upon her dismissal, she approached the Employment Tribunal, which referred the matter to the ECJ for clarification. The Advocate General decided in favour of Coleman, and this was upheld by the ECJ12. The decision in Coleman has tremendous significance, in respect of employment matters; because it recognises indirect discrimination against employees who are not themselves disabled, but who are subjected to discrimination, due to their association with disabled persons or relatives. In Sunderland City Council v Conn, the Court of Appeal held that an employee could rely on the Protection from Harassment Act if the conduct of the employer towards him was oppressive and unacceptable. It was also held that the complaint against such conduct by the employer was to be oppressive and unacceptable and not just unattractive or unreasonable13. The Court also held that the misconduct should be of the order that would sustain criminal liability. The cases of Stringer and Schultz-Hoff raised several issues pertaining to employment matters, such as sickness and working time regulations. The principal issues addressed were, whether the EU Law provides paid holiday entitlement to employees, during their periods of absence due to illness; and whether an employee, whose services had been terminated, due to absence resulting from long term illness, can claim holiday entitlement14. In Stringer, the UK courts decided against the employees. According to the courts, holiday is leave and employees are not entitled to avail leave from work. In other words, leave accumulates, only when the employee attends work. However, the ECJ overturned this reasoning, and held that annual leave entitlement was akin to any other benefit provided in the remuneration package15. It also opined that this was a right, regardless of whether the employee was in a position to work. This ruling will compel the UK employers to provide additional benefits to their employees; and it would serve to increase personnel costs. Moreover, employees, who were on leave, due to illness would not be in a position to delay the resumption of their duty. In addition, they could avail themselves of leave running into several weeks, in order to recover fully. Furthermore, some of the employees could proceed on leave, within a short period of resuming their duty. This ruling is restricted to statutory holiday entitlements. There is no requirement for additional contractual holidays to accumulate, during periods of long-term sickness. In 2009, the High Court held that employees could claim pay, instead of holidays, via the employment tribunals. This had the effect of enabling employees who had dismissed on grounds of ill health to claim all the amounts due to them, after the termination of their employment16. This has proved to be beneficial to the disabled who were unable to continue in employment, due the severity of the illness occasioned by their disability. The employer should have property rights to deal with his business. However, there has been a degree of interference with these rights, on account of certain legislative measures. Therefore, the qualities of neutrality and formal equality are essential to restore autonomy to the employer, in respect of his property rights. This perspective had arisen from the common law belief of sole property rights of the employer. As a consequence, there was marked reluctance to make laws that would scrutinise to a greater extent, dismissal of employees. The courts were also in favour of such an approach towards this sensitive issue17. For instance, the extant legislation relating to this area was interpreted by the courts, in a manner that was beneficial to the employers. The legal protection against unfair dismissals is said to be very less. This is glaringly evident in instances of economic dismissals, and dismissals on grounds of redundancy or reorganisation of the company. The ILO Recommendation 119/1963 demonstrated limitations in the review of economic dismissals by employers. However, this report did not provide a comprehensive description, in respect of the deference shown by the UK judiciary towards the economic decisions of employers18. The Redundancy Payments Act 1967, proved to be beneficial to such thinking. It had assumed that it was incorrect to interfere with the power of management to appoint or dismiss its employees. This approach was ably supported by the belief that redundancy was sufficient justification for terminating the services of employees. The objective behind this Act was apparently to provide legal immunity to the employer from claims relating to unfair dismissal19. In this manner, a culture of supremacy of management was blatantly promoted in the UK. The aim was to make it as convenient as possible for the employer to conduct his business, and the rights of the employees were deemed to be insignificant and relegated to the background. Employers utilised the redundancy payment provisions to dismiss their employees. These provisions provided the employers with the necessary discretion to reduce the number of their employees. Therefore, unfair dismissals should not be related to the concept of redundancy. The establishment of any relationship between them would invoke the redundancy payment provisions of the Act. Moreover, if the employer is undergoing economic difficulties; the courts, in general, will support the former’s decisions with regard to terminating the services of the employees20. In such cases, the courts refrain from closely scrutinising dismissal decisions by the employer. Workplace harassment has emerged as a major problem for employment law. Employees, who suffer from workplace harassment, have limited legal resources at their disposal. An employee with continuous employment for a year, can resign, and can claim compensation on grounds of constructive unfair dismissal. In instances of severe harassment or bullying, which results in psychological harm to the employees, it is possible to claim compensation from the employer, for negligence and breach of contract. The Protection against Harassment Act 1997 makes it possible to claim such compensation21. In Majrowski v Guy’s and St Thomas’s NHS Trust, the Court of Appeal dealt with employee harassment at the workplace. It ruled that the employer was vicariously liable for the harassment, committed by an employee during the course of employment22. This ruling provided a firm basis for applying the Protection against Harassment Act 1997, in the cases involving workplace harassment. All the same it proved difficult to establish a conceptual relationship between harassment and discrimination. In the UK, the discrimination laws are drafted in the context of differences between two comparatives. This situation requires claimants to prove that they had been subjected to detrimental treatment, in comparison to other employees, in the similar circumstances; and that such discrimination had transpired on grounds of sex, race or any other illegal classification23. In a large number of cases, the courts had opined that if the treatment was unconnected with the employees’ gender, then there was no discrimination. Section 17 of the Employment Relations Act 1999 was amended in such a manner that an employer could practice dissimilar policies between his employees. Effectively, it became permissible to discriminate between those who belonged to a union and those who were governed by an individualised contract of employment. Albeit, this legislation prohibits discrimination against those who belong to a union, it nevertheless, permits the employer to proffer individualised employment contracts, which serve to dilute the power of collective bargaining24. This is a serious contradiction in terms, and displays the latent desire to promote the interests of the employers. The extant law, violates Convention 98 of the ILO, regarding the Right to Organise and indulge in Collective Bargaining. The UK enacted the Human Rights Act 1998 which is based on the European Convention on Human Rights. Article 11 of the ECHR empowers every person to become member of Trade Union. Similarly, differential treatment between the members and non – members of a trade union is in breach of Article 14 of the ECHR25. The EC Directives require employers to involve their employees in the decision – making process. English law adopts the Anglo – American model regarding the relationship between the employer and the employee. In order to implement the provisions of the EC Directives, the UK has to change its legal attitude towards the role of workers in any firm. Being a Member State of the EU, the UK is required to implement the provisions of the EC Directives by incorporating them into its domestic legislation26. However, in practice, the rulings of the English courts reveal that they tend to implement their Parliamentary Acts, instead of the legal principles of the EU. There is need to adopt modern concepts and theories, while re examining the property rights in the firm. This is essential, if employees are to be included in the legal structure of the company27. In the UK, it is very difficult to get reinstated into the employment, on being dismissed unfairly. The Trade Union & Labour Relations (Consolidation) Act 1992 (TULRCA), does not provide any significant help in this area. A Trade Union receives legal immunity only when it can demonstrate that its goals are lawful. The ECJ ruled in the Viking and Laval cases that workers had a right to strike for their demands. This ruling rendered strike a right rather than freedom. The right to strike does not ensure effective protection; but protection can be ensured, although to a limited extent, by indirect methods. The ruling in the Viking and Laval established limits to the freedom to take collective decisions28. The right to strike as established by the ECJ is restricted to EU law. Therefore, the UK need not provide a right to strike in its legislation29. Thus, employees and other vulnerable people are at a major disadvantage, Vis – a – Vis the employer in the UK. References Catherine Barnard, Simon F. Deakin, B. A. Hepple, & Gillian S. Morris, ‘The future of labour law: Liber Amicorum’, Hart Publishing, 2004; ISBN 184113404X, 9781841134048 Charles Barrow, ‘Industrial relations law’, Edition 2, Routledge, 2002 Clark v TGD Ltd t/a Novocold (1999) IRLR 318 Coleman v Attridge Law (2008) IRLR 722 Linda Clarke, Harassment, Sexual Harassment, and the Employment Equality (Sex Discrimination)Regulations 2005, June 2006, retrieved 8 February 2010 from http://ilj.oxfordjournals.org/cgi/pdf_extract/35/2/161 London Borough of Lewisham v Malcolm (2008) IRLR 700 Majrowski v Guy’s and St Thomas’s NHS Trust [2005] EWCA Civ 251 Mandla v Dowell Lee (1983) 2 AC 548 Roger Blanpain, Andrzej Świątkowski, & Nikitas Aliprantis. The Laval and Viking cases: freedom of services and establishment v. industrial conflict in the European Economic Area and Russia. Volume 69 of Bulletin of comparative labour relations. Kluwer Law International, 2009 Stephen Taylor, Employment Law Update, June 2009, retrieved 7 February 2010 from http://www.oup.com/uk/orc/bin/9780199543922/01student/00updates/updateJuly09.pdf Stringer and others v HM Revenue and Customs/ Schultz-Hoff v Deutsche Rentenversicherung Bund (2009) IRLR 214 Sunderland City Council v Conn (2008) EWCA Civ The Race Relations Act 1976 The Race Relations (Amendment) Act 2000 The Redundancy Payments Act 1967 The Protection against Harassment Act 1997 The Trade Union & Labour Relations (Consolidation) Act 1992 (TULRCA) Wanjiru Njoya, ‘Property in work: the employment relationship in the Anglo-American firm’, Ashgate Publishing Ltd, 2007 Read More