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The political commitment to full employment is an important part of the framework within which divergent interest groups in developed market-economy countries have tried to promote economic progress with social justice. In countries with centrally planned economies, guaranteed employment is a basic principle--a right and duty of every citizen. In the developing world, steady remunerative work for all who wish it remains an elusive ideal, although the number of employed is increasing and has even reached a majority in some countries.
Current unemployment levels have a high social cost. employment, or at least prospects of it, is an important element in the individual's and family's well-being, even aside from the income derived from a job. Unemployment today has more serious consequences than in decades past. Unemployment bears particularly heavily on two age groups--the young who may never have worked and older workers who may never work again. The structural changes in unemployment need to be seen in the context of large shifts in the work force that have been occurring over a longer period. The two most significant have been the decline in the proportion of men aged 15-64 in the work force and the sharp increase in the proportion of women of the same age group.
A dominant factor in the decreasing proportion of men in the labor force has been the withdrawal in large numbers of men in or just past their prime, particularly in European countries. However, what rights and obligations have employers and employees toward each other in Western Labor Market? In this paper I would like show law obligations of employees and employers in a case of Sebastian vs. Arabella and Luigi. "Francesco owns an exclusive and very popular restaurant employing three chefs, each of whom specialize in a particular culinary skill, and eight waitresses. Arabella, one of the waitresses, has been absent from work due to illness for six months. She has been diagnosed as suffering from nervous exhaustion and stress. Sebastian, one of the waiters, arrived for work smelling of alcohol and slurring his speech. Francesco asked him if he was drunk. Sebastian swore at Francesco and told him to mind his own business. Francesco sacked him on the spot. Luigi, one of the chefs, has been arrested for criminal damage and assault. He is in custody pending his trial. Francesco has been advised that Luigi will probably receive a prison sentence if found guilty. Luigi is protesting his innocence. ". After reading thoroughly the supposed case of Francesco I found that the relative law is the Wages Act 1986. " The Act provides for a remedy inspect of deductions from wages, with special provisions for retail employment; ((4)NM. Selwyn, Selwyn's Law of employment, 10th edition, pg. 512). Through the above we can understand that the employer has right to deduct any amount from employees wages. In our case the Francesco can implement this law to subtract the fifty pounds per month from Luigi's wage. According to (5) a deduction from the company to the wage of an employee is unless it is authorized in one of these ways. First the deduction may be authorized by statute. Clearly there is nothing wrong with deducting PAYe contributions and the like. Secondly, it may be authorized by a term of employee's contract, provided that either the contract is in writing or the term in notified in writing to the employees before the deduction is made (1).
Finally, it may be authorized by specific consent of the worker, signified in writing. To ensure fairness to the employee, the Act gives no effect to a "concept" or to "agreement" to a term allowing the deduction given after the events lending to it. By reading our case three above exceptions of the wages Act can be found. That makes Francesco deduction of fifty pounds per month from Luigi's salary lawful. According to 5.2 of the Wages Act 1986 it is allowed to have a deduction in respect of stock deficiencies or cash shortages, lead to two conditions.
- The requirements of 5.1 must be obtained; for example contractual agreement enabling the deductions to be made.
- The demand for payment must not exceed 10% of the total wages payable on the day in question.
The deductions, made from wages are allowed under the wages Act 1986. The industrial tribunals can be used to solve any deductions. As mentioned before, particular case is one related to 5.1 of the wages Act. So, the company's decision to deduct the amount of fifty pounds per month from Luigi's salary, is a breath of the Act. Therefore Luigi can not claim for compensation and apply for a tribunal. The 5.5 of the wages Act clearly states that only one remedy exists for the breach of the Act. That is to complaint to an industrial tribunal. It is now clear that Francesco is entitled to deduct the money from Luigi's salary and Luigi can not go to industrial tribunal for remedies. Finally, during the failure to consider redeployment, the employer should consider redeployment before making a redundancy. A middle-aged man was made fairly redundant. According to the above, the catering manager has chosen an unfair selection process, since the redundancy was based on criteria. Also, Francesco I suppose did consult with the chefs, he only announced the company's decision. Both sides did agree a selection process and chefs were not aware of the criteria. The catering manager did act reasonable. Francesco can therefore claim fair redundancy by referring also to the IRLR 1st eAT and Luigi can not claim for compensation. For Luigi's case: "The definition of redundancy serves a dual purpose: redundancy is one of the potentially fair reasons in fair dismissal cases and an employee who is dismissed by reason of redundancy is also entitled to a redundancy payment"((3) (R. Upex, Termination of employment, pg.78)). In the case of redundancy the employee can claim for a redundancy payment or even compensation, if the dismissal is unfair. Three grounds suggest that a redundancy is unfair:
- Where an unfair selection process is used
- Where there is no prior warning or consultation with the employees
- Where redeployment is not considered.
During the unfair selection process there are several selection criteria that must be used, they should be fair and objective. During the failure to warn or consult, a recommendation giving employees as much warning as possible and consulting with them over how best to handle the situation, must be made.
Salary reduction is not applicable in Arabella's case because of of Disability Discrimination Act (DDA) which has taken a drubbing since its enactment in 1995.(2) employment discrimination is prohibited against "qualified individuals with disabilities." This includes applicants for employment and employees. An individual is considered to have a "disability" if s/he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Persons discriminated against because they have a known association or relationship with an individual with a disability also are protected.
The first part of the definition makes clear that the DDA applies to persons with mental diseases as Arabella who have impairments and that these must substantially limit major life activities such as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. An individual with epilepsy, paralysis, HIV infection, AIDS, a substantial hearing or visual impairment, mental retardation, or a specific learning disability is covered, but an individual with a minor, no chronic condition of short duration, such as a sprain, broken limb, or the flu, generally would not be covered. The second part of the definition protecting individuals with a record of a disability would cover, for example, a person who has recovered from cancer or mental illness which is Arabella. The third part of the definition protects individuals who are regarded as having a substantially limiting impairment, even though they may not have such an impairment. For example, this provision would protect a qualified individual with a severe facial disfigurement from being denied employment because an employer feared the "negative reactions" of customers or co-workers. (6)
In the first part of our case the breach of contract towards Arabella will be analyzed. The employer and the employee have a relationship, which is based on agreement. This agreement consists of several terms. In order for one or more of any of these terms to change there should be consent of both the employer and the employee to do so. One party alone cannot make any change in the terms and conditions. If the employer changes the duties and their nature because of her illness, then there is a variation of contract without the consent of the employee. This is a breach of contract since a change has been made without a mutual agreement. The employer can then be held liable in damages and the employee has the right to resign and claim constructively dismissal.
In general as for the both parties employers and employees have to begin to think that mass drug tests are the answer to their problems in order to assure the relevance to the issue of drug and alcohol use. What many of employers don't know is that there are many problems that surround drug testing at work. Sebastian fail to educate himself with established or recent laws about drug testing in the workplace and about human rights. Also, mass, low-cost screening tests may not be reliable or valid. Alcohol testing does not differentiate casual drinking from alcohol dependence or alcoholism. Drug tests can create an untrustworthy environment for the employees. There are better ways to address substance abuse. Drug testing in the workplace is an important issue for all of Western labor force, regardless if it's you're first job or if you've had a steady job for 30 years. Many employees, who have had to subjugate themselves to degrading and demeaning drug tests, feel that these tests violate their constitutional rights. It is an infringement on their privacy. In order for the tests to make sure there is no specimen tampering there must be an administrator present to oversee every action the employee makes during their drug test. For tests such as hair and breath testing this does present a major problem, but for urine tests men and women alike are disturbed by the direct observation of their urine collection. (7)employers have a responsibility to accommodate employees who are disabled.
Drug testing has not been proven to be against the European Human Rights Commission. "In order to institute a drug testing policy into a company which complies with human rights legislation, an employer must be able to demonstrate that the testing is related to job performance, and not just substance abuse." Many employees feel that drug testing is a way of discriminating against people who might have a drug and/or alcohol disability. An example of such discrimination is found in Sabastian vs. Arabella and Luigi. Sebastian found that "under a new Alcohol and Drug Policy introduce in 1992, Sebastian's employees in "safety-sensitive" positions were required to notify management if they currently had or had previously had a substance abuse problem."(7)
This example clearly shows that it is discriminatory to terminate a person's job because of a past or present disability and that there are law matters involved with drug testing in the workplace. The lab procedure is a second invasion of privacy. Urinalysis reveals not only the presence of illegal drugs, but also the existence of many other physical and medical conditions including pregnancy. Drug testing is an invasion of privacy that is to be abhorred and it is clearly against our rights. Drug testing is designed to detect and punish conduct that is usually engaged in off-duty and off employer's premises, in other words, in private. There is much confusion about the accuracy of drug tests. In fact claims of billions of dollars lost in employee productivity are based on guesswork, not real evidence. Urine tests cannot test for drugs directly. They test for traces of substances taken before the test which are no longer active in your system but can still be detected. The most accurate methods of urine analysis are time-consuming and expensive, and even then can be wrong at least 10% of the time. even though these drug tests are the most accurate, more often then not employers opt for a less accurate drug test because the more accurate ones are too much of an expense for the company. These cheaper drug tests often have an error rate of 30%, which means that 30% of all people that take these drugs tests are falsely accused and may be fired from their jobs. Also, traces of legal medicines, such as cough syrups, nasal sprays and eardrops can be confused with those of illegal drugs. even the poppy seeds found in baked goods can produce a positive result for heroin.(7)
Furthermore, drug tests are not work-related because they do not measure impairment that occurs during work hours. A positive drug test only shows that a drug was taken at some time in the past. Also, the drug test does not distinguish between occasional and habitual use, the same is also true with alcohol testing. Another reason that drug testing isn't very reliable is the fact that drug testing does not even detect all drug users. This is true because most stronger drugs such as cocaine do not last in the user's blood stream as long as someone who has used marijuana for example. This means that the weekend user of cocaine is much more likely than the weekend user of marijuana to pass a weekday drug test. Also drug tests may not reveal very recent drug use. For example, a worker who does not smoke marijuana regularly decides to smoke marijuana in the middle of the work day, a drug test may come back negative because mot enough time has passed for drug metabolites to appear in the urine. With all these factors working against the accuracy of drug tests, not to mention the occasional error of the people who process the specimens at the lab and the false-negatives that occur when an employee deliberately decides to sabotage a drug test, it is hardly worth it for an employer to go through with the trouble of a drug tests when the true drug users, the ones that are harmful to the company, are not pointed out anyways. There are better ways to address substance abuse in the workplace then to rely on the very unreliable method of drug and alcohol testing. These ways are more cost-effective, time-effective and have a much better impact in the workplace; also they do not raise the same privacy issues that drug tests do.
An effective alternative to drug testing is to train supervisors to confront, and refer impaired employees to employee Assistance Programs or other intervention programs. This strategy leads to increased employee acceptance of treatment and a subsequent improvement in overall job performance.
The conclusion from these divergent findings is that the predicted net effect of new technologies on employment depends to a great extent on the assumptions made about the growth of output and productivity in the coming years. Most of the studies fail to consider the stimulating effect of the new technologies on investment and tend to minimize or neglect the additional demand for labour that is generated through the creation of new goods and services. The diffusion of new technologies will also cause basic changes in overall working conditions and in the perception of work within the society--blurring the lines between working time and leisure, those in the labor force and those outside it, the self-employed and employees. At the same time, those outside the work force who are the main beneficiaries of the welfare state-the retired, unemployed, handicapped and poor, or those traditionally supported by their families-have become involved in new types of activity brought about by technical change which not only increase their incomes but also allow them to play a more active role in society.