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Employment regulation issues and how the problem can be solved

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There are many recognized types of employment relationships, which the regulation fails to include because it is outdated. Although it is difficult to cover every single type of employment relationship in the regulation, the regulation should aim to cover as many relationships or to enact a new law that covers more relationships in order to avoid uncertainty and to resolve the issues that exist in the current law. This essay will highlight some issues that arise as to the scope of employment regulation and also suggest some solutions to the problems.

The Employment rights act 1996

The Employment rights act 1996 defines who is a worker and who is an employee. The act defines an employee “ as a person that works under a contract of employment” . The act also defines the term worker as “ a person that works under a contract of employment” . The problem with those definitions of a worker and an employee is that they are exactly the same, which causes a problem when trying to distinguish between a self-employed person and an employee. The Employment rights act is outdated as it was enacted in 1996, which means it is almost 20 years old. The common law interprets the laws based on cases they face and then they agree on different tests to apply on case-by-case basis.

Employment law relationships

There are wide ranges of relationships in employment law and each of these relationships have different types of contracts within them. A couple of examples of the relationships are temporary workers, agency work, fixed term work etc. . As employment relationships become more distributed the scope of employment law becomes unclear because there is no guarantee as who is considered an employee or self employed . As a result of the lack of clarity, courts try to set up guidelines to highlight the standards that need to be reached, in order to be considered an employee. The courts use common law tests on case-by-case basis. The issue remains whether employment law is considered as uncertain because it does not show who exactly is considered an employee.

‘ Legal lottery’

According to Leighton and Wynn, the common law uses different tests for deciding what type of employment relationship they are faced with, which transfers a great deal of discretion to the courts to decide which tests are appropriate for the situation, and this in turn leads to “ the impression of a legal lottery” . The idea of a ‘ legal lottery’ leads to the idea that people do not know whether they are employees until the courts choose a test to apply in their situation and if they are lucky enough they will be considered employees. This indicates that the law in this area is uncertain and ambiguous, as it does not demonstrate clearly who is an employee or who is not an employee. The law should accurately state which relationships are protected by employment regulations.

The scope of legislation

Regulations of employment tend to lack clarity and specificity, which has been proved in some cases. In the case of Addison v London philharmonic orchestra ltd , a bass player thought he was an employee however in reality he was self-employed, even though he worked for 13 years in an orchestra . The unfair part is that he only found out in court that he was not protected by the regulation, which basically is one of the issues in employment law . A second case, which proves this point, is W. H. P. T. Housing Association ltd v secretary of state for social service , an architect was held to be self employed even though he was required to attend work everyday on time, he was told what to do and he was paid by an hourly rate. The court held in this case that because a weekly or a monthly rate paid the other architects and that he was paid an hourly rate he was considered to be self-employed . This clearly shows that the scope of regulation does not cover every type of contract and fails to protect all workers but chooses to protect some workers. The third case, which shows the inconsistency in this area of law, is Wiltshire police authority v Wynn . This case was about a police cadet who was considered not an employee on the basis that there was no contract of employment. The court held that if the main reason was training or educating then there is no contract of employment . These are three different cases which highlight the problem with the law of employment in which it does not cover all relationships, even though it is not supposed to cover all relationships, some guidelines should be used to show a person clearly, whether they are an employee or considered self employed.

Solutions:

Italian and French law

According to cabrelli, Italian and French law list different employment relationships which parties are obliged to choose from and the list also includes clear definitions of each contractual relationship . English law should take the French and Italian law as an example and consider the idea of constructing a list of contractual relationships, in order for individuals to know if they are employees and what type of contractual relationship they have with their employer. English law should introduce a list of relationships that are not considered as employment relationships and also another list, which includes all relationships that are considered to be employment relationships.

Redrawing the limits of employment law

Furthermore, Freedland suggests that the law of employment’s limits need to be redrawn, and the law needs to use broader terms, which are more wide-ranging than that of “ the contract of employment and those of the employed persons and the worker” . Freedland proposed a middle category between employees and independent contractors. However, Davidov disagrees with the idea of a middle category . Davidov claims that it is hard enough to distinguish employees from independent contractors, which makes it “ virtually impossible to find room for a middle category that is based on the exact same characteristics” . There is no middle category between employees and independent contractors; either an individual is an employee or an independent contractor there is nothing that could fit between those two categories and if there were, it would blur the boundaries of employment law even more.

The ‘ one test’ idea

The law is seen as acting in favor of the employer rather than the employee. Based on the current law it will be easy for the employer to manipulate his way out of a contract by claiming that the employee is not an employee and that there is no contract of employment between them . The law has to be objective and it should focus on the intentions of the parties more than the actual written contract. Each party will say what they can in order to help themselves and this is where the courts step in and use their impartiality to look at the situation from afar to ensure fairness. The courts should decide on one test, which includes every category of a relationship in order to prove if a person is an employee or self-employed. The test should include all the employment law tests used by the courts but gathered in one test, this will ensure that everyone is treated fairly and this would discourage the idea of a ‘ legal lottery’ .

Allocating employment rights

Leighton and Wynn pose a very important question concerning the self employed persons and that is “ whether workers should have employment rights and if so, which ones?” Their suggestion to this question is that the rights that the self-employed persons should have are basic rights like health and safety in the workplace . The suggestion that the worker should also have rights is a step toward the right direction in relation to employment law. Employment law needs to acknowledge that some workers are as deserving as an employee and even though they do not deserve all the rights that the employee has, they are deserving of the fundamental rights including equality.

Generalizing Employment law

Hugh Collins suggested a “ two dimensional or biaxial way” refers to using the existing law of employment and redrawing its boundaries but he admitted that it would be difficult to establish the idea into clear legal rules . However Freedland developed around the idea that Hugh Collins put forward. Freedland suggested that the employment law should be broadened in order to pinpoint different types of employment contracts within the different scopes . It is the ability to move in an open structure, which allows the construction of different types of employment contracts . The idea that Freedland suggested is a good one if it would be easy to turn it into clear legal terms that makes the law less complex than it is. To make the law even wider and general would increase the courts discretion, which might lead to an abuse of power. Developing the existing law is not as good as enacting a new employment law, which focuses on resolving the issues that exist in the old one.

Double-edged sword

Cabrelli argues against the idea to broaden and generalize the law of employment. He argues that it could be a “ double edged sword” because it might give employment rights to people who do not actually deserve them . Not all employment rights should be given to the worker, it is the argument that parliament should rethink the law and they should look at the existing problems within the law and try to shape the new law based on resolving those issues. It could be better if parliament could separate the rights of the self-employed and the employees in separate laws to eliminate the over complexity of the law and to construct a clear and precise law that sets out the different rights for the different employment contracts.

Justifying the scope of regulation

Hepple suggests that parliament should avoid using over generalized terms in the law as to prevent “ restrictive interpretations of the courts to the law” , hence to avoid and decrease the complexity of the legislation . He also suggests that the law is overly complex because of the connection between contractual and statutory rights. The point is to justify the scope of regulation so that “ workers, employers and courts” can easily grasp it . The law should be developed and it should develop based on new jobs that enter the market. Many jobs have entered the market since 1996 and the law does not cover them, which makes it harder for courts to apply the old law to the new labour market.

Conclusion

In conclusion, the employment rights act 1996 is outdated and overly complex. The law lacks clarity and specifity. The courts choose which tests to apply in every situation, which in turn leads to the impression of a legal lottery. The essay identifies different cases which show the existence of a problem in the law, and that it does not cover all types of relationships, as a result no one knows whether they are employees or self-employed until they have reached the court room. The essay then offers solutions to consider for this area of law. The solutions that were put forward are considering a list of different contractual relationships and defining each relationship just like the Italian and French law. The second solution proposed was to redraw the boundaries of the employment law. The third solution is to create one new test, which covers all the points that are found in the current tests applied by the courts. The fourth solution is to allocate some employment rights to the workers for instance fundamental rights and equality. The fifth solution is to separate and allocate the rights of self employed persons and employees. Finally, enact a new law that covers all the issues that arise in the existing law and to add the new jobs that entered the labour market these last 20 years.

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