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Employment law is the branch of the law that deals with employment related issues. Employment laws exist in many countries, including the United States and the United Kingdom.
Employment law in the United KingdomEmployment Law in the United Kingdom has developed rapidly over the past forty years, due to a historically strong Trades Union movement and to the United Kingdom's membership of the European Union. In its current form, it is largely a creature of Statute, (Acts of the UK Parliament) rather than Common Law. Leading Employment Law Statutes include the Employment Rights Act 1996, the Employment Act 2002 and various legislative provisions outlawing discrimination on the grounds of sex, race, disability, sexual orientation, religion and, from 2006, age. Unusually for UK legislation, the operation of the Employment Law system is broadly similar across the whole of the UK. There are some differences in the common law between England & Wales and Scotland and, in addition, Northern Ireland has extra anti-discrimination legislation. After the employer's own processes, such as disciplinary hearings and internal appeals, have been exhausted, employment law cases usually start by the aggrieved employee presenting a complaint to an Employment Tribunal (ET). These (as Industrial Tribunals) were set up under the 1964 Industrial Training Act, although they now have a substantially greater role and do count as courts. They have sometimes been referred to as industrial juries. Generally speaking a tribunal will hear specific complaints about an aggrieved party being deprived of their rights, including (but not limited to) unfair dismissal. Unfair DismissalA complaint of unfair dismissal can only be made where there has been a dismissal, so that there is no general right to complain of unfair treatment. An employee may, however, complain at any time that they consider a statutory 'employment protection' right has been infringed. Where this takes place in connection with a dismissal an employee may combine this with their complaint against the dismissal. Except where no qualifying time limit applies (as in the case of 'statutory rights') an employee needs to have worked for their employer for a least a year in order to make a complaint of unfair dismissal to an employment tribunal. In certain circumstances, an employer's conduct could be such that an employee is entitled to resign in response and to regard that as an unfair "constructive" dismissal. Failure by an employer to extend a fixed term contract can also be an instance where a claim for unfair dismissal may be made. A complaint of unfair dismissal must be made to an employment tribunal within 3 months of the effective date of termination of the employment. That time limit may be extended if a tribunal finds that it was not reasonably practicable for the complaint to have been made within the 3 month period. The time limit may also be extended in certain circumstances where the statutory grievance procedure applies. In a complaint of unfair dismissal, the burden of proof is initially on the claimant (the employee) to establish that there was a dismissal. The respondent (the employer) then has to show that the dismissal was for a reason which is capable of being fair and must relate to the employee's
The claimant might dispute the real reason was one one of these and may, in particular, seek to argue that the reason related to a protected right. If they were to show that the reason did relate to a statutory protected right, rather than a potentially fair reason above, the dismissal wouldbe automatically unfair. Where the respondent can show that such a potentially fair reason for dismissal did exist, however, the tribunal must then decide whether their action in dismissing fell within the range of responses that a reasonable employer might adopt. This is different from any opinion the tribunal might itself have about the fairness of a dismissal. There is no burden of proof on the question of fairness, it being a neutral question for the tribunal. If an employee is successful in a claim for unfair dismissal then they can be given a "compensatory award". There is no statutory restriction on what may be awarded under this heading, except that it must be "just and equitable in all the circumstances". In the main a compensatory award reflects past loss of earnings, together with a sum for future loss of earnings. A notional sum is often awarded for "loss of statutory rights". The compensatory award is limited by a statutory cap (in 2005 this was £55,000). An employee may have to give cr for any social security or other payments made to them. Where the unfairness in a dimissal is procedural only, a respondent may be able to claim that the employee's compensation should be limited to the period the respondent would have needed to dismiss the employee fairly in any event - as when making assessments in selecting particular employees for redundancy, for instance . This is known as a "Polkey" reduction. An award may also be reduced because of compensatory fault on behalf of an employee. In some cases this may be as much as 100%, so that an employee might take home nothing. Compensation for discrimination claims is not subject statutory limits however and, in the case of highly paid employees, can be substantial. References
Reviews and AppealsEither party can ask an employment tribunal to review its own decision and, independently, may appeal the decision to a higher court, the Employment Appeal Tribunal (EAT) on one of three grounds (1) an error in law, (2) a finding of fact not supported by evidence, or (3) a finding of perversity. Strict time limits apply in both cases. The decisions of the EAT, are treated as binding precedents by employment tribunals. An EAT decision may be appealed to the Court of Appeal (in England and Wales) or the Court of Session (in Scotland), and after that to the House of Lords. At any stage in the process of hearing a claim or appeals therefrom, a question on the interpretation of European law may be referred to the European Court of Justice. Employment law in the United StatesEmployment law in the U.S. was traditionally governed by the common law rule of "at-will employment," meaning that an employment relationship could be terminated by either party at any time for any reason or without a reason. However, beginning in 1941, a series of laws changed this. In 1941, Executive Order 8802 (or the Fair Employment Act) became the first law to prohibit racial discrimination, although it only applied to the national defense industry. Later laws include Title VII of the Civil Rights Act of 1964 (and amendments), Title I of the Americans with Disabilities Act of 1990, the Family and Medical Leave Act 0f 1993, and numerous state laws with additional protections. The Fair Labor Standards Act regulates minimum wages and overtime pay for certain employees who work more than 40 hours in a work week. There is no special employment tribunal in the U.S. Employment law cases are heard in state or federal courts, depending upon the issue, the size of the employer (the Civil Rights Act of 1964, for example, applies only to employers with 15 or more employees), and the litigation strategy of the plaintiff. California
California is a world leader in employment protection. In 1959, it added the Division of Fair Employment Practices to the Department of Industrial Relations. The Fair Employment and Housing Act of 1980 gave the division its own Department of Fair Employment and Housing, with the stated purpose of protecting citizens against harrassment and employment discrimination on the basis of3:
It should be noted that sexual orientation was not specifically included in the original law but has been established based on case law. In any case, protections outlined in the Fair Employment and Housing Act do not extend beyond the state of California. References
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