Employment Law
Scenario 1
Kulwant is an atypical worker who is an exception to the general rules that guide traditional employment. This is why he was not offered any insurance and PAYE deductions as he is not required at his desk all the time whether there is work or not, but only when needed. He was an atypical worker even after his organisation offered him the contract of employment. Kulwant is an atypical worker because his employment and working conditions diverge from the norm (traditional employees) in more than one ways. Davies (2009) identifies non-traditional workers to be different from traditional workers in the sense that they could make use of their employers’ services and are employed or are acquired by an organisation that hires their services to other principals or users. As such, they are not permanent workers of the organisation; rather, they have been acquired only for their services when needed and are not required at work after.
Typical work or standard employment relationship under the EU is defined separately from atypical work because typical work is geared towards wage earners who also conform to the standard full-time job of unlimited duration with a single employer (Tealdi, 2011). This employment relationship justifies typical employers to have access to employees schedule as long as it is within the countries stipulated work ours. Under EU laws, workers under typical work are entitled to a socially secure full-time job that guarantees a regular income, pension and protection from health and unemployment benefits (Bercusson, 2009). Atypical workers generally come in to complement typical workers. Bercusson (2009) identifies that they are generally referred to as non-standard forms of employment because of the nature of their employment relationship stemming from irregular organisational demands in certain services. Their position and limited relationship with employers are justified because labour rights usually impose extra costs on employers.
While Kulwant works for the Florist business in Hatfield, delivering their Fun Friday Workshops and other workshops to adults, Kulwant is not under the organisation’s employment and is brought in. But who has employed Kulwant? It is not the end customer, such as the adults that Kulwant goes to teach in the workshops. Rather the Florist Agency in Hatfield. As an atypical worker, Kulwant is hired and called into work on work on an ‘as required basis. He is legally not required to turn in to work like the temp worker unless expressively requested by the agency to turn in for work.
As an atypical worker, Kulwant does not qualify for all employment benefit; a worker in a more traditional field might qualify. Davies (2009) identifies that atypical workers as non-traditional workers are cheaper to the organisation since they only work when they are needed, and since they are not traditional workers, they do not qualify for all the employment rights granted to employees. Kulwant does not qualify for unfair dismissal protection claims and redundancy protection claim against his employer. As such, his employers have greater rights in hiring and firing him, but this is subject to a variety of factors under The Agency Worker Regulation of 2010. These are laws designed and deliberately implemented towards targeting discrimination of temporary workers in the workplace. Generally, The Agency Worker Regulation of 2010 stipulates that agency and temporary workers rights kick after they have worked for a period equal to 12 weeks within their position in the company.
If Kulwant has worked for 12 weeks under the AWR, Kulwant is entitled to a paid holiday (the law stipulates that the agency worker will need to check in with their employer in order to finalise their paid holiday). Agency or temporary workers are also entitled to rest breaks and limits on working time, no unlawful deductions from their wages, national minimum wages, right not to be discriminated, protection under health and safety laws and the same access to shared facilities and services at work as other comparable employees (Martin and Broadbent (2021). Since Kulwant is not an employee of the Florist organisation, he is not entitled to unfair dismissal and redundancy pay over the claim that a customer had filed a complaint against his actions. This claim is further reinforced due to the fact that Kulwant is not deducted PAYE and insurance claims by his employers, as such meant to imply that he is not protected or insured in any health scheme by his employer due to the nature of his association with them.
Kulwant has the above rights based on the premise that under his employment to work temporarily for the organisation stated; he faces similar issues that a typical employee would be subjected to in his position. Davies (2009) identifies that both typical and atypical workers are economically dependent on the employers, and both rely on the income from the job for their survival as such, are entitled to similar working conditions. In his position as a temporary worker, these premised arguments allow him to ask for protection but only limited to the scope of functions he carries and the period in which he will be employed. Kulwant is also required to maintain professionalism at work and avail himself when needed. In the event that he does not, he risks being denied some of the amenities offered. In the McMenemy v Capita Business Services Ltd, courts held that part-time workers were only legible to aspects such as paid holiday based on the ground that he did not show up to work on Mondays and as such failed to work similar hours as their counterparts in typical employments. As such, there is a degree of accountability and responsibility required from the workers as well as the organisation to ensure employees rights are met according to AWR. Kulwant, who comes to work anytime when called, was entitled to paid leave of absence, fair pay, and equal access to resources, and all of these have been offered by the employee.
Scenario 2
Employers have a right to dismiss their employees, and employers are generally required to work reasonably in making a case for the dismissal of employees. Employers are also required to have arguable reasons for the dismissal of an employee. Unlike Kulwant, an atypical worker, Steve is a typical worker with benefits and protection from unfair dismissal, a right to be heard, and redundancy pay in a dismissal. Davies (2009) stipulates that any employee is required to work for a qualifying period to be legible for statutory rights become legible to bring about claims of unfair dismissal: this is a period between six months to two years. Qualifying periods were put in place for the protection of employers against costly legal action. They were also a labour law tool for employment as it gives employers the ability to take in more workers considering they had little to fear in the event that they dismissed workers who had no legal recourse. Steve has been working in the business as a solicitor in the firm for eight years, as such, he has the statutory rights to bring about claims of unfair dismissal, and also he has the rights to be heard by his employers and even compensated in the event that the dismissal was unreasonable and unwarranted.
On arguing whether Steve’s dismissal was reasonable, there are a variety of ways to approach the topic. In the case of Copsey v WWB Devon Clays Limited, Copsey was dismissed from his position for failing to agree to come to work on Sunday as it was infringing on his personal rights to worship. After a series of discussion on trying to achieve a compromise with Copsey, the employer settled on dismissing him, and Copsey went to court to contest the dismissal and as an infringement on his freedom of religion. The court argued that he was not unfairly dismissed, and additionally, his dismissal was not unfair based on the fact that his employers have rights to change business patterns, and it was reasonable to call Copsey for negotiation before blatantly making the decision to dismiss him. Davies (2009) argues that it is common jurisprudence and a generally agreed upon value that it is not the employer’s duty to accommodate employees’ problems if they were not central to the work they were doing or scope of employment they had been contracted.
In Steve’s case, Steve had fairly and reasonably alerted his manager on his marriage’s problematic nature as a key problem likely to affect his productivity. But the way the manager approached the case is what could be viewed as unreasonable. He degraded Steve in front of one of his important clients through verbal abuse and attack on his personal character in a moment when Steve was barely coping. Across the European Union, a similar approach is taken by the courts and Employment Tribunals in evaluating and settling cases of unfair dismissal. In the case of Iceland Frozen Foods v. Jones, the tribunal assessed whether an employer’s actions were within the purview of the band of reasonable responses. The range of reasonable responses takes into account a variety of factors. Taking a look at a previous case; Turner v East Midlands Trains Ltd [2012] EWCA Civ 1470, the court assessed whether the plaintiff’s reputation was damaged in the manner that their employer acted before terminating them, it also assesses the conduct of both parties in the extraordinary event, whether their rights on privacy and other essential aspects were breached in order to assess the decision.
Steve employers infringe on Steve’s reputation by calling him useless and an embarrassment in front of his client. The gravity of these consequences is that Steve potentially stands to lose a very important customer and have his reputation destroyed, making it hard for him to maintain a good relationship with this client in the future. His manager fails to consider Steve even when he comes to have a discussion and apologised for the incident, and as such, Isobel acts unreasonably, calling guards to escort him out of the building, which may see him failing the test on a range of reasonable responses prior to Steve’s dismissal. Cushway (2005) identifies that there are a variety of reasons under which a fair dismissal is warranted; among them is unsatisfactory performance. Steve’s performance during the high stake meeting was arguably unsatisfactory and, by all means, warrant a dismissal. But there are various procedural outlines to follow in order to ensure that an employer does not participate in the unfair dismissal of their employees. Cushway (2005) identifies that employers need to follow disciplinary procedures except in gross misconduct; employees need to be allowed to explain their behaviour and appeal to the employee’s action. Bersusson (2009) identifies grave misconduct as unethical and immoral or unlawful acts engaged by any party in employment. Steve’s action does not warrant the definition of grave misconduct; as such Isobel was required to file disciplinary actions instead o just dismissing him on the spot.
Scenario 3
Providing employees with the correct notice to end their employment contract is a key step within the dismissal process. The notice on the dismissal account for the specific dates on which the notice starts running, and it remains important as it forms the basis date relating to certain rights and declaration of tribunal complaint (Cushway, 2005). Steve is not offered a letter of dismissal after Isobel verbally fires him and in the process of the heated verbal exchange by Isobel, Steve accidentally pours Frieda’s coffee, causing Freida to inflict physical injury on Steve. Up until Steve is offered a written notice of dismissal, he is still technically a worker of the firm and the physical abuse by Frieda also works as unfair treatment and unreasonable treatment that causes him harm. The whole debacle counts as an event stemming from his dismissal by the company, making the company liable for Steve injury and Frieda criminally liable for his injuries. Cushway (2005) identifies that the company is responsible for their employees’ safe ejection out of their employment premises upon dismissal. Lockton (2003) identifies that when an employer and employee security might be a risk to one or vice versa, it is the employer’s responsibility to offer their terminated employee security escort out of the business premises and ensure their safe ejection. As such, Frieda’s action of intentionally inflicting the pain on Steve serves contrary to what was to happen and makes Isobel’s firm responsible for his injuries as such liable for Steve’s compensation.
References
Bercusson, B., 2009. European labour law. Cambridge: Cambridge University Press.
Copsey v WWB Devon Clays Limited
Cushway, B., 2009. The employer’s handbook 2009-10. Philadelphia: Kogan Page.
Davies, A., 2009. Perspectives on Labour Law: Law in Context Series. Cambridge: Cambridge University Press.
Gov UK, 2021. Your rights as an agency worker. [online] GOV.UK. Available at:
Lockton, D., 2003. Employment law. 4th ed. New York: Palgrave Macmillan.
Martin and Broadbent, 2021. Uk: Employment & Labour Laws and Regulation 2021. 1st ed. ICGL.
McMenemy v Capita Business Services Ltd [2007] ScotCS CSIH 25
Tealdi, C., 2011. Typical and atypical employment contracts: the case of Italy. Heriot-Watt University, [online] Available at:
Turner v East Midlands Trains Ltd [2012] EWCA Civ 1470
The Agency Workers Regulations Legislation of 2010
