1. EMPLOYMENT LAW
UNIT 19

2. Preview Employment law Legal regulation of employment
Employment contract
End of employment
Employment disputes
Discrimination in the workplace

3. Read the short introductory paragraph and answer the questions
Employment law regulates the rights and duties of employers and employees. Its main aim is to protect workers’ rights and ensure that they are treated fairly by the employer and provided adequate working conditions.
1. Think of ways employment relations are regulated by the law. Why do you think the state should protect employees? What kinds of dangers could employees be exposed to in an employment relationship?
2. What forms of employment can you think of?

4. Legal Regulation of Employment
In many countries employment relations are governed by comprehensive labour codes.
In the UK, sources of employment law include statutes, such as the Employment Act (2008), Employment Relations Act (2004), Equality Act (2010), etc.
Statutory rights include the minimum wage, the right to equal pay for like work, non-discrimination, the right to sick and parental leave, the right to be represented by a trade union, etc.
Case law still provides numerous tests for determining employee status (full- time, part-time, occasional work, agency work) where a clear, written contractual specification is lacking.

5. Employment contract
regulates the relationship, rights and obligations of a particular employee with regard to the employer.
an imbalance of bargaining power between the employer and the employee.
For this reason, some statutory protection is provided, e.g. protection in the event of employment contract termination and protection against discrimination.
The contents of an employment contract may be dictated by a collective agreement - result of negotiations between the employer and the trade union.
statute obliges the employer to provide written particulars of employment

6. Employment contract
The written particulars: the names of the contracting parties, the date of commencement of employment, remuneration details (rate, calculation method and payment intervals), working hours, holiday entitlement, provisions concerning sick leave and sick pay, and pension schemes
Further details include duration of contract, job title and brief description, place of work, notice period, a reference to disciplinary rules and procedures, etc.

7. End of employment
Employment can be terminated by the expiration of a fixed-term contract, by mutual agreement, or by death or dissolution of the employer.
If the employer has a surplus of workers, an employee can be made redundant. Redundancy payments to the employee are sometimes made in such cases.
In the event of gross misconduct an employee can be summarily dismissed, where employment is terminated instantly or as soon as reliable evidence of misconduct is obtained.

8. End of employment
If the notice period for dismissal was not observed by the employer, or if the contract was terminated on unlawful grounds, the employee may have a claim for unfair or wrongful dismissal.
An employee can also resign, observing the agreed notice period.
If an employee is forced to resign as a result of breach of contract by the employer or due to unfair treatment or discrimination, he/she may file a claim for constructive dismissal.

9. Employment disputes
Dissatisfaction can arise on either side of the employer-employee relationship.
Concerns can be addressed informally by instigating a discussion in good faith with a view to finding a quick and amicable solution.
In case the informal attempt fails, procedures must be laid down by the employer for handling grievances (employee complaints) and for disciplinary procedures.
If these internal procedures fail to yield results, assistance can be sought from a third party, who may act as a mediator or an arbiter in an alternative dispute resolution procedure.

10. Employment disputes
The next step: either a lawsuit before a county court, or a claim brought before an employment tribunal.
An employment tribunal comprises three members: a chairperson (a barrister or a solicitor) and two lay members, one typically from the pertinent industry, and the other often with experience in trade union activities.
The tribunals have quicker and more informal procedures than regular courts.

11. Employment disputes
Appeals against their decisions are heard by the Employment Appeals Tribunal (EAT), with the Court of Appeal as the third instance.
The available legal remedies are compensation, reinstatement (returning to previous employment) and re-engagement (obtaining another position with the same employer).
Compensation is the most frequently sought remedy, although a limit is set as to the amount of compensation a tribunal can award.
All other claims can be presented before county courts. These have more formal and complicated rules and procedures, but can award higher damages.

12. III Read the text one more time and answer the following questions.
1. What employee rights are guaranteed by statute in Britain?
2. What types of employee status can you find in the text? Try to provide examples.
3. Why is a contract of employment different from a regular contract?
4. What is a collective agreement? How do you think it can affect the contents of an employment contract?
5. Name some written particulars of an employment contract.

13. III Read the text one more time and answer the following questions
6. What is a notice period and why is it important?
7. Name some implied terms of an employment contract.
8. What are some of the reasons employment can come to an end?
9. What is meant by ‘dissolution of the employer’? Remember what you learned in the unit on company law.
10. Name all the judicial instances for the resolution of employment disputes. What do you know about their jurisdiction?

14. IV Replace the underlined expressions with expressions from the text.
1. In case of a dispute, employees are represented by their labour associations.
2. The law guarantees a minimum statutory pay.
3. Details of employment rights and obligations, including details concerning your pay are enclosed with your employment contract.
4. Employee complaints can be filed with the line manager.
5. The number of available days off is not negotiable.
6. The tribunal ordered that the claimant be returned to the position held before the lawsuit.

15. V Match the terms from the text with the corresponding definitions
REDUNDANCY
This is a lawsuit available to the employee if he believes that his dismissal was unlawful on account of the grounds for dismissal or because there was a breach of procedure in the termination of employment.
2.SUMMARY DISMISSAL
This refers to the situation where an employee initiates the termination of employment for his own reasons (e.g. to find better employment elsewhere)
3.UNFAIR/WRONGFUL DISMISSAL
This is a lawsuit available to the employee upon his own resignation. The employee has to prove that the employer was in breach of contract, which forced him to resign.
4.CONSTRUCTIVE DISMISSAL
This refers to the situation where an employee has been laid off because the amount of workload no longer justifies his employment.
5.RESIGNATION
This refers to termination of employment by the employer available when an employee has committed gross misconduct.

16. Discussion
1. The text refers to an imbalance of power between the contractual parties in an employment contract. What are the reasons behind this imbalance? Do you think the statutory protection successfully makes up for this?
2. What other duties of the employer and employee respectively might be added to the implied terms of an employment contract? Can you work out a hierarchy of those duties?
3. Think of examples of gross misconduct which might be committed by a lawyer, a judge, a medical doctor, a teacher and a bus driver.
4. What could lead to a constructive dismissal? Which is the most appropriate legal remedy for such cases?

17. VIII Choose one of the following tasks and prepare a class presentation or report.
1. Study the provisions regarding termination of employment in the Croatian Labour Act. Are the types of termination identical, similar or largely different compared to the English ones? Is it generally easy to find equivalents for the legal terms used in the two sets of law?
2. Find out more about Employment Tribunals. Are there specialized courts in Croatia for dealing with employment-related disputes?
3. Find out more about how parental leave and pay are regulated in English law.

18. Discrimination in the Workplace
Discuss the following questions:
How would you define discrimination?
Are you aware of any kind of discrimination in your environment? In what circumstances can it appear?
Do you think it is important for a country to have good anti-discrimination laws? Justify your opinion.

19. Discrimination in the Workplace
A frequent cause of dissatisfaction among employees comes from unequal or unfair treatment, or discrimination.
Certain special conditions exist in which unequal treatment of employees may be justified (such as experience, seniority, additional responsibility, special skills, etc.), but sometimes this is a result of discrimination.
The Equality Act 2010 provides comprehensive protection against several types of discrimination not only for employees, but also candidates and job applicants.

20. Discrimination in the Workplace
An employee may be discriminated against on the basis of a protected characteristic.
These are: age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation.
Discrimination can occur directly or indirectly.
While direct discrimination is directed against the person in question, indirect discrimination occurs when a rule applying to all employees has a particular negative impact on a particular employee.

21. Discrimination in the Workplace
Discrimination is deemed to occur even if the employee in question does not in fact possess the protected characteristic that was the basis of discrimination, but is thought or perceived to possess it (perceptive discrimination), or if he or she associates with a person who possesses a protected characteristic (associative discrimination).

22. Discrimination in the Workplace
Other types of prohibited conduct relating to protected characteristics include harassment and victimisation.
Harassment - "unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual".
Protection from harassment can also be sought if harassment occurred due to association or perception.
On the other hand, when an employee who has made a complaint, and files a grievance or a lawsuit under the Equality Act, and consequently suffers harassment or is otherwise treated badly, they are considered to be victimised.

23. III Match the following situations with the types of prohibited conduct
DIRECT DISCRIMINATION
Adrian's wife is an immigrant from the Middle East. He works in a small company, employing a dozen employees. The colleagues in his office hardly ever speak to him and he is never invited to join them for lunch breaks or after-work drinks. He is the only employee who was not invited to the company Christmas party.
INDIRECT DISCRIMINATION
George is short and fair skinned, and looks much younger than his age. He is 35 but most people don't think him a day over 25. When an opportunity arises for him to represent the company at a meeting with some high-ranking potential partners, his supervisor refuses to give him the task because he is worried he wouldn't be taken seriously.
PERCEPTIVE DISCRIMINATION
Ian has filed a grievance with his supervisor because he believes he is not given the same opportunities for advancement as his colleagues because he is gay. Ever since he filed the grievance his supervisor has been giving him overwhelming amounts of work to be completed by unreasonably tight deadlines.
ASSOCIATIVE DISCRIMINATION
Maria is the only employee in her department who has not been promoted in the last seven years despite her outstanding work record. All the other employees who have been promoted are men.
HARASSMENT
Jane is denied the opportunity for advancement because she has a disabled son and her superiors are worried that she might not put her best foot forward in the new job considering that taking care of her son requires a lot of effort and time.
VICTIMISATION
A driver’s licence is listed as a job requirement in the advertisement. The job description does not mention driving as an activity the incumbent is supposed to carry out as part of the job.

24. Discussion
V Discrimination can occur even before employment starts. Discriminatory practices can be found during the recruitment procedure. The text you are about to read concerns discrimination during recruitment and is intended as a guide for employers looking to employ new staff.
Before you read, discuss possible ways in which potential candidates for a job might be discriminated against in the following steps of the recruitment procedure:
job advertisements
job interviews
selecting among a number of candidates

25. VI Read the text and identify the requirements for the following
protection against age discrimination
protection of people with disabilities
protection of privacy

26. Discrimination in job adverts
You must not state or imply in a job advert that you’ll discriminate against anyone. This includes saying that you aren’t able to cater for workers with a disability.
Only use phrases like ‘recent graduate’ or ‘highly experienced’ when these are actual requirements of the job. Otherwise you could discriminate against younger or older people who might not have had the opportunity to get qualifications.
Where you advertise might cause indirect discrimination - for example, advertising only in men’s magazines.

27. Questions you can’t ask when recruiting
You must not ask candidates about protected characteristic or whether they:
are married, single or in a civil partnership
have children or plan to have children

28. Asking about health or disability
You can only ask about health or disability if:
there are necessary requirements of the job that can’t be met with reasonable adjustments
you’re finding out if someone needs help to take part in a selection test or interview
you’re using ‘positive action’ to recruit a disabled person
You might be breaking the law if any discrimination happens during their recruitment process, even if you use a recruitment agency.

29. Asking for a date of birth
You can only ask for someone’s date of birth on an application form if they must be a certain age to do the job, e.g. selling alcohol.
You can ask someone their date of birth on a separate equality monitoring form. You shouldn’t let the person selecting or interviewing candidates see this form.

30. Spent criminal convictions
Applicants don’t have to tell you about criminal convictions that are spent .
You must treat the applicant as if the conviction has not happened, and cannot refuse to employ the person because of their conviction.
There are some areas of employment that are exempt from this rule, e.g. schools.

31. Trade union membership
You must not use membership of a trade union as a factor in deciding whether to employ someone. This includes:
not employing someone because they’re a member of a trade union
insisting someone joins a trade union before you’ll employ them

32. Employing people with protected characteristics
You can choose a candidate who has a protected characteristic over one who doesn’t if they’re both suitable for the job and you think that people with that characteristic:
are underrepresented in the workforce, profession or industry
suffer a disadvantage connected to that characteristic (e.g. people from a certain ethnic group are not often given jobs in your sector)
You can only do this if you’re trying to address the under-representation or disadvantage for that particular characteristic. You must make decisions on a case by case basis and not because of a certain policy.
You can’t choose a candidate who isn’t as suitable for the job just because they have a protected characteristic.

33. Favouring disabled candidates
When a disabled person and a non-disabled person both meet the job requirements, you can treat the disabled person more favourably.

34. Discussion
According to the text, job advertisements should not refer to ‘recent graduates’ or ‘highly experienced’ candidates unless these are actual requirements for the position. Can you think of examples where such requirements might be permissible?
The text refers to ‘positive action’. What types of employers are suitable for implementing such policy?
What is your opinion of the fact that the person interviewing a candidate is not allowed to know their age? Could this be a disadvantage?

35. VIII Choose one of the following research tasks and prepare a class presentation or report.
In Croatian law, the principal regulation governing non-discrimination is the Anti- Discrimination Act (Official Gazette 85/08, 112/12). Find out how the Croatian anti- discrimination provisions compare to what you have learned about English law.
The central public institution responsible for handling discrimination-related complaints is the ombudsman. Find out more about this institution in Croatia.
Find out more about other employment disputes such as Rainbow v Milton Keynes Council (2007), English v Thomas Sanderson Ltd. (2008), Chondol v Liverpool County Council (2008) or Sandsfield Gravel Co Ltd v Loving (2009).
Croatia has a fairly recently set up system of labour courts that operate within municipal courts. Find out what the most frequent grounds for employment disputes are in these courts.