Employment Rights and Consumer Protection

Introduction

This essay will deal with two areas of law. The first is related with employment law and the second is related with consumer rights. An employee is protected by the Employment Rights Act 1996 (“ERA1996”). In the current case provided, this essay will address whether or not: i) Albert is an employee and is entitled to an employment contract; ii) as en employee, ERA1996 entitles Albert and his colleagues to work-life balance; iii) he can raise a claim of discrimination on account of his dismissal based on age; and iv) ERA 1996 entitles him to raise claims for other rights, including rights against unfair or wrongful dismissal. The Consumer Rights Act 2015 (“CRA 2015”) protects the consumers by entitling them to right to reject, refund, repair or replace of goods that do not meet satisfactory quality and are not fit for specified purposes. In the current case involving Nigel, this essay will address whether or not: i) Nigel can raise a claim to that effect; and ii) the grounds of the shop manager will hold ground against the rights of Nigel considering the facts of the case.

What are the legal issues and whether Albert has likelihood to succeed

Whether Albert is an employee under a contract of employment?

ERA 1996, s230(1) defines an employee as an “individual who has entered into or works under a contract of employment”. Section 230(2) provides that this contract can be express or implied. If it is expressed, it can be oral or in writing. In the case of Albert, he is an employee as per the ERA 1996 as there was oral contract between Albert and the store. ERA 1996, s1 requires the employer to provide the employee a written statement of employment particulars with employment conditions. The written statement comprises the principal statement, which must be given on the first day of employment and a wider written statement within 2 months of the start of employment. The principal statement provides details of the job title or work description of work, payment details, work hours, flexibility of the work, holiday entitlement, and obligatory training amongst other things. The employer must provide the employee on the first day of employment sick pay and procedures, paid leaves, and notice periods (GOV.UK, 2020). In the current case, Albert has a right of action against the employer for not providing him principal statement on the day joined work, with details of his employment including clear terms about his work. The job given is different from what he had applied for. The duty was wide and ambiguous that the employer made him undertake other works such as sweeping floors, general cleaning duties, and heavy lifting with no training. He can complain to the Employment Tribunal to get a declaration confirming the particulars of his employment. He can also take action against the employer for failing to provide him on the first day of his work the employment sick pay and procedures, paid leaves, and notice periods. If there is a breach of the employer’s obligation to issue the above mentioned section 1 statement, the Tribunal must make an awarding accordance with Employment Act 2002, s38 (Govdata Ltd v Mr David Denton UKEAT/0237/18/BA).

The work-life balance of himself and his colleagues

Most employees work for non-standard hours (Groof, 2015, p.174). Flexibility of work provides for the employees the freedom to choose when to start or end working time (hall, 2015, p.28). ERA 1996 provides for family-friendly provisions. They govern adoption, paternity and maternity rights, and emergency and parental leaves, time off for dependants, and also flexible working (Aylott, 2014, p.96; Millington, 2015, p.63). ERA, 80F(1) entitles the employee a statutory right to request the employer a contract variation in terms of the working hours and the time required to work. This provision provides for work-life balance (Blyton, 2009, p. 523). The provision acts as a mechanism to support work-life balance for employees (Dex & Smith, 2002). The Flexible Working Regulations 2014, Section 3(1), provides that only an employee who has been continuously employed for a minimum of 26 weeks can apply for flexible working. In the current scenario, only the colleagues of Albert who have completed 26 continuous working weeks can apply for flexible work hours and timing. As for Albert, he does not have this statutory right. As for now, it is only his Section 1 statement that could give him the protection and rights of an employee.

Discrimination

The Equality Act 2010, s19 provides discrimination occurs if a person applies upon another person a discriminatory practice and places the other person in disadvantage, or the practice is proportionate to a legitimate result. In Marriott v Oxford Co-op Society, it was ruled that there must be a casual link between that practice and the disadvantage. Thus, any radical change in employment terms and conditions is a breach of employment contract ((No2) [1970] 1 QB 186). The Employment Equality (Age) Regulations 2006, s3(1)(a) provides that a practice is discriminatory if it treats person less favourably that another person on the ground of the latter’s age. According to the ruling in Seldon v Clarkson Wright, direct age discrimination is justifiable in public interest subject to social policy and the individual aim of the employer is not sufficient ([2012] UKSC 16). In the current case, dismissing Albert because of his age and stating that he is too old to cope with work is discriminatory in nature. Moreover, the job Albert was given to do was not even the job description he was hired for. The dismissal by the employer in the current circumstances does not seem to comply with the ruling of Seldon. Albert can take an action against the employer in this regard.

Other employment rights, including those relating to unfair or wrongful dismissal

In the current case, there are certain issues regarding his dismissal, overtime, unpaid leave, payment date of monthly salary, and collective agreements.

Termination notice. ERA 1996, s86 provides an employee to be served a minimum notice before termination of employment. Section 94 also entitles the employee not to be unfairly dismissed by the employer. The employer must follow reasonable disciplinary proceeding, including the notification period. They must produce supporting evidence; conduct investigations; follow required procedures, or give the employee’s opportunity to share their views or appeal. An employer is bound by the ACAS Code of Practice. This Code ensures employers follow disciplinary rules, such as stated above. The must be full and fair procedure. The employee can raise claims of unfair dismissal in an employment tribunal (ACAS, 2015). The Employment Relations Act 1999, s33 and ERA 1996, 117(3)(b) provide for awards of appropriate amount “not less than twenty-six nor more than fifty-two weeks’ pay” for unfair dismissal. In this case, the dismissal was not lawful as it did not comply with the notification period and procedures of ACAS. Further, Albert can claim for the compensation under the 1999 Act and 1996 Act for unfair or wrongful dismissal. Overtime. The case shows that most employees were working well beyond their contracted hours. The law requires average pay for the total hours work must not be below the National Minimum Wage (GOV.UK, 2020). Compulsory overtime is only allowed if the employment contract stipulates it (Martin v Solus Schall [1979] IRLR 1). If the contract provides for compulsory overtime, the work hour can exceed the average of 48 hours per week. Any hours exceeding this hour limit is possible through a contract in writing and signed by the parties (GOV.UK, 2020). Albert and his colleagues can claim the payment as minimum wages rules. Any terms that provides for compulsory overtime must be subject to agreement between the parties. Unpaid leave, sick leave. An employee is also entitled to a minimum of 5.6 weeks’ paid holidays (GOV.UK, 2020). They are entitled to Statutory Sick Pay, which is up to £95.85 per week up to 28 weeks (GOV.UK, 2020). They must have done work and earn an average of a minimum of £120 per week (GOV.UK, 2020). Albert and his colleagues can claim for these entitlements. Date of monthly salary. For monthly paid employee, the pay day is the last working day of the month (GOV.UK, 2020). The employer has violated this law by paying Albert 7 days late. He can claim against the employer to pay him on the day required by law. Collective agreements. Albert and colleagues, through representative from trade unions or staff associations, can enter into an agreement with the employer to negotiate the terms and conditions of employment, including the pay or working hours (GOV.UK, 2020).

Legal issue and whether Nigel can claim his rights under Consumer Law

CRA 2015, s9 provides that goods must be of satisfactory quality. Section 10 requires the goods to be fit for particular purpose. Section 19 provides the consumer the rights to enforce terms about the goods, including the right to reject (ss 20 and 22), repair or refund (23) and price reduction or final rejection (ss20 and 24). If the goods are faulty, not according to the description or does not do what it is supposed to, the consumer is entitled to refund. There is no right to refund if the consumer knew that the goods were faulty at the time of purchase (GOV.UK, 2020). Refund is when the item is genuinely faulty and the required 30 days have not elapsed since the purchase. In regard to the right to repairs and replacements, if the consumer has accepted the goods and discovers the fault, the vendor may repair or replace the goods. The consumer can reject the goods even after the goods are repaired or replaced. Acceptance occurs if the consumer altered the goods. The consumer is entitled to repair or replace if the consumer returns the goods within 6 months (GOV.UK, 2020).

Nigel’s legal rights

In the current case, several pages of the book were torn, whilst some of the pictures had been carefully cut out. This status of the book does not meet the criteria of Section 9, which is satisfactory quality and fit for the purpose. Nigel, thus, has the right to enforce the contract, as per Section 19.

Refusal ground will fail

In the current case, Nigel can enforce the rights provided under Section 19. The shop manager’s ground of refusal will fail. In regard to the first ground, the response from Nigel will be that the book was faulty at the time it was purchase. Nigel did not have any knowledge of the damage to book at the time of purchase. Her niece opened her present four weeks after the purchase. In regard to the second ground, writing the niece’s name cannot amount to damage of the book. The book was already damaged. The Consumer Protection from Unfair Trading Regulations 2008, Regulation 3 prohibits such kind of unfair commercial practices, which is the second ground in this case. There is no professional diligence on the part of the shop owner. In regard to the third ground, Nigel’s niece opened the present four weeks after the purchase. Moreover, Nigel is entitled to repair or replace the book within 6 months from purchase. A consumer can reject the book even after the goods are repaired or replaced. In this case, the book cannot be repaired at all. The option is replaced. Considering these responses, the shop owner cannot succeed in his/her defence with the grounds presented.

Conclusion

The employment law provides sufficient protection of an employee. They are entitled to the written statement of terms of employment. They are entitled to have a work life balance. They are to be treated equally without any discriminatory. They must be given a fair chance of presentation. In case of dismissal, ACAS full and fair procedure must be followed. Any unlawful dismissal must be compensated. Employees are also protected from exploitation. They cannot be subject to overtime without lawful payment and agreement. They are entitled to the overtime, paid leave, paid sick leaves and other payment rights. Employees’ protection is expanded by their entitlement to collective agreements with the employers. Albert is entitled to these employees’ rights and it is unlawful on the part of the employer to violate any of these terms of employment. In case of consumer rights, the CRA protects the rights of consumers such as Nigel to goods that are satisfactory and fit for specified purposes. They can raise a claim to reject the goods, get them repaired or replaced, or refund. The grounds of the shop manager that do not hold ground as per the law cannot override the rights of the consumers.

Bibliography

Blyton, P., 2009. Working Time and Work-Life Balance. In P. Blyton, E. Heery & N. Bacon, eds. The Sage Handbook of Industrial relations. SAGE Publication 2009.

Dex, S. & Smith, C., 2002. The Nature and Pattern of Family-friendly Employment Policies in Britain. The Policy Press.

Groof, S.D., 2015. ‘Working Time in Modern Law. In L.M. Méndez & L. Serrani, eds. Work-Life Balance and the Economic Crisis: Some Insights from the Perspective of Comparative Law (Volume II: The International Scenario). Adapt University Press.

hall, J.-C., 2015. The Work-Life Balance in the UK. In L.M. Méndez & L. Serrani, eds. Work-Life Balance and the Economic Crisis: Some Insights from the Perspective of Comparative Law (Volume II: The International Scenario). Adapt University Press.

Millington, P., 2015. Employment Law 2015. Oxford University Press.

The Consumer Rights Act 2015

The Employment Equality (Age) Regulations 2006

Seldon v Clarkson Wright ([2012] UKSC 16