Employment Protection Rights Research Articles

The Impact of Austerity in the Framework of Corporate Rescue and the Rights of Workers in the EU: A Road to Recovery?

The financial crisis and the sovereign debt crisis that followed it have been attributed to a number of causes. Whether these are economic, social, cultural, or legal, they are all by and large also political. The aim of this article is not to delve into the myriad of heated political arguments that continue to dominate the scene, but to assess the impact of the financial crisis on the employment protection rights in Greece, Portugal, France, and the United Kingdom and to examine its impact on their corporate rescue regimes with a view to understanding what the legislative and social changes may mean for the future of these individual nations, their people and businesses, and perhaps for the EU and Eurozone as a whole. In light of the crisis, the rights of the workforce have been severely compromised to afford financially troubled companies a greater opportunity to recover. In order to minimise the catastrophic impact of financial turmoil on their economy and society, all four jurisdictions introduced reforms to their labour codes and corporate rescue mechanisms, often in the name of austerity. This article will only offer a snap shot of the important changes that have occurred, the effects as understood at the current level of research, and an assessment whether or not the reforms of pre-insolvency regimes in particular have operated as an effective embankment for the protection of social and economic welfare, the former of these having already been significantly reduced throughout the EU.

The Impact of Austerity in the Framework of Corporate Rescue and the Rights of Workers in the EU: A Road to Recovery?

The financial crisis and the sovereign debt crisis have been attributed to a number of causes. Whether these are economic, social, cultural or legal, they are all by and large also political. The aim of this article is not to delve into the myriad of heated political arguments that continue to dominate the scene but to assess the impact of the financial crisis on the employment protection rights and the corporate rescue regimes in Greece, Portugal, France and the UK. In light of the crisis, the rights of the workforce have been severely compromised to afford financially troubled companies a greater opportunity to recover. In order to minimise the catastrophic impact of financial turmoil on their economy and society, all four jurisdictions introduced reforms to their labour codes and corporate rescue mechanisms, often in the name of austerity. This article will offer a snapshot of the changes and their effects and an assessment whether or not the reforms of pre-insolvency regimes have operated as an effective embankment for the protection of social and economic welfare. The purpose of this piece is to shed a light on the changes that have occurred and that have affected employment rights in the domestic legal systems of individual member states, as influenced to some extent by the EU in its expectations of improvements to increase labour market flexibility, and whether corporate rescue mechanisms in individual member states are able to provide some counterbalance to the erosion of employment rights generally. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd

The economic and legal identity of the self-employed in Anglo-Australian Jurisdictions

ABSTRACTThe objective of the article is to track the part played by self-employed or independent contractors in shaping the wage contract. A petite bourgeoisie class that cannot be a party to an employment contract has been influential in shaping its judicial design. The reality is that in both English and Australian doctrine the judiciary has utilised the distinction between independent contractors and workers as the benchmark for categorising those embraced by an employment contract. The article argues that this state of affairs has resulted in a long standing judicial failure to provide a lucid exposition of the economic characteristics of the self-employed and wage earners, and that this has produced over an extensive historical period a series of misguided contract of employment tests. The failure to provide a cogent legal test for distinguishing the self-employed from those selling labour hours has a steep cost. When those who should be categorised as employees are classified as independent contractors the victims lose the prospect of access to employment protection rights. Social justice is the loser when the law fails to adopt a test that accurately identifies those asserting their right to the protective mantle of labour laws. A cardinal feature of the article is the space given to revisionist judges who in the past have been willing to take tentative steps towards forging an employment contract test that better reflected the economic lines separating the self-employed or independent contractors from wage labour. These bold spirits have been prepared to take the bull by the horns and begin the process of seeing class as an organising principle in distinguishing employees from independent contractors.

Feudal societies and Hobbit law: The story of ‘The Hobbit amendment’

The film industry has traditionally relied on freelancers and self-employed artists in many of the roles needed in production and post-production. The industry relies on project-based labour whereby teams of creative artists are assembled and interact for the duration of a venture and are then disbanded at the end of the production (Rowlands & Handy, 2012). Freelance working is now a core feature of film production, television and associated industries (Heery, 2004). It has been suggested that the flexibilities associated with self-employment are a natural component for these industries and that this model could be applied to other knowledge-based industries (de Bruin & Hanrahan, 2003). Other studies have found that individuals in the creative industries do not necessarily identify with the popular depiction of themselves as individualistic entrepreneurs and therefore pre-disposed to pursue self-employment (Coulson, 2012). The film and television industry has been subject to de-regulation in some countries, with the result that the proportion of the workforce made up of freelance workers has significantly increased. This has been the direct result of government action in some cases (Saundary, 2001).The consequences of classification of workers as being self-employed entail exclusion from many traditional employment protection rights. Self-employed workers or independent contractors are almost always excluded from access to lawful collective bargaining in common law countries (McCrystal, 2014). The purpose of this study is to highlight some of the problems associated with the status of creative workers as independent contractors, by detailing a particular instance of the re-regulation of that status for film workers in NZ by means of parliamentary process.

Whistleblowing in a changing legal climate: is it time to revisit our approach to trust and loyalty at the workplace?

This article suggests that the introduction of employment protection rights for whistleblowers has implications for the way in which trust and loyalty should be viewed at the workplace. In particular, it is argued that the very existence of legislative provisions in the United Kingdom reinforces the notion that whistleblowing should not be regarded as either deviant or disloyal behaviour. Thus, the internal reporting of concerns can be seen as an act of trust and loyalty in drawing the employer's attention to wrongdoing. Equally, external whistleblowing may result from a worker's belief that he or she also has a loyalty to the wider society. Given that the interests of employees do not necessarily coincide with those of their employer and that whistleblowers sometimes suffer reprisals, the author concludes that it is inappropriate to impose a contractual duty to report concerns. Instead, employers should endeavour to promote a culture of openness and create confidence in the mechanisms they provide for whistleblowing.

Employee relations in the non‐union hotel industry: a case of “determined opportunism”?

This paper examines employee relations management in a non‐union sector, showing how employers in the hotel industry remain relatively free to manage in an arbitrary and determined fashion, in spite of an increasingly wide net of statutory employee rights. These management practices are effected in the way the workforce is structured, and in the differential treatment of workers in the same organisation. Notably “peripheral” unskilled workers, which are in the majority, are subjected to a more “hard” form of human resource management and are made more vulnerable from lack of eligibility to employment protection rights. Employers are not constrained from dismissing workers and fail to comply with many minimum legal requirements or observe the law in spirit. “Determined opportunism” represents an extreme instance of a “retaining control/cost‐control” style of management.

Ministers of Religion and Employment Rights: An Examination of the Issues

In 1998 the government published a White Paper entitled Fairness at Work. It invited views on whether legislation should be introduced to take the power to extend the coverage of employment protection rights by regulation to all those who work for another person, not just those employed under a contract of employment. It would not have been apparent from this that the government was considering extending employment protection rights to ministers of religion. Nor is it likely that many people realised this could be the effect of section 23 of the Employment Rights Act 1999 by which Parliament subsequently enacted the proposal contained in the White Paper. Nonetheless the possibility was recognised as the Bill passed through Parliament. Pressed about the government's view as to the position of ministers of religion, the Minister explained that no policy decision had been taken, but he did say:

Rights and remedies: Part-time workers and the equal opportunities Commission

Abstract In a landmark case the House of Lords has handed down a decision which should not only improve the position of some of the UK's most disadvantaged workers but, equally as crucial, should increase the importance and strategic effectiveness of the Equal Opportunities Commission. The decision in Equal Opportunities Commission v. Secretary of State for Employment [1994] 1 All ER 910 that part-time employees are being sexually discriminated against, contrary to European law, by the provisions of a UK statute which imposes more onerous conditions on them than on their full-time colleagues will have important implications for part-timers both specifically in relation to qualifying for employment protection rights and, almost inevitably, beyond the confines of that legislation (Employment Protection (Consolidation) Act 1978). Those consequences are more than matched by the fact that the EOC was allowed to seek, on its own behalf a declaration that the UK laws were in contravention of the European Treaty ...

Protection of part‐time workers in Irish law

In Ireland, employment protection rights have been extended to regular part‐time workers. This article traces the legislation's history, examines arguments of employers and unions and, having discussed the contents of the new legislation, raises the question whether the legislation is compatible with requirements of EC anti‐discrimination law.

Independent Contractors and the Challenge of Vertical Disintegration to Employment Protection Laws

During most of this century industrial organization has tended toward vertical integration of production.' Although sectors of the economy differ considerably in their degree of concentration into large firms,2 the general pattern unfurling has been the replacement of small businesses linked by commercial contracts by organizations which direct production through bureaucratic controls. Since the recession at the beginning of the 1980s, however, this trend has been reversed. As well as the decomposition of capital into separate corporate entities in an endeavour to replicate efficient capital markets,3 managers of large firms have exhibited a greater interest in disintegration, by arranging aspects of production through subcontracting, franchising, concessions, and outsourcing.4 Similar developments have occurred in the public sector as one aspect of the policy of privatization.5 Legal regulation of the employment relationship has hitherto matured alongside the growth in vertical integration of production. This coincidence explains in part the limited scope of legal protection for employees. Employment protection rights such as the right to claim unfair dismissal or a redundancy payment typically vest only in employees whose jobs fit into the complementary paradigm form of employment in vertically integrated production: employment which is full-time, stable, and for an indefinite duration. The recent trend towards vertical disintegration of production places many workers outside this paradigm and therefore beyond the range of employment protection laws.

TRANSFER REGULATIONS

Journal Article TRANSFER REGULATIONS Get access Employment protection rights on transfers of businesses , Wheeler v. Patel , [ 1987 ] I.C.R. 631; [ 1987 ] I.R.L.R. 211 (E.A.T.) Brook Lane Finance v. Bradley [ 1988 ] I.R.L.R. 283 (E.A.T.) Gateway Hotels Ltd. v. Stewart [ 1988 ] I.R.L.R. 287 (E.A.T.) Forth Estuary Engineering Ltd. v. Litster [ 1988 ] I.R.L.R. 289 (Ct. Sess.) P. L. D. P. L. D. Search for other works by this author on: Oxford Academic Google Scholar Industrial Law Journal, Volume 17, Issue 1, 1988, Pages 249–253, https://doi.org/10.1093/ilj/17.1.249 Published: 01 June 1988

The Transfer of Employees

In examining the distinction between a contract of service and one for services it has been stated that the control notion is by no means the determining factor in establishing the employer‐employee relationship. Other notions come into play. It will be recalled that the reasons why it is essential to know who is, and who is not an employee, are, inter alia, to establish whether or not a worker is entitled to the statutory employment protection rights given solely to employees, whether the employer is liable to make certain statutory deductions, for example, national insurance and income tax; whether any vicarious liability may be imputed to the employer for torts committed by his employee, whether the employer is in breach of the health and safety at work obligations toward his employee, and so on. A topic not much discussed by the courts and by writings generally is whether the criteria or notions used for the establishment of the employee status are the same as those for the transfer or loan by the employer (who may be called the permanent employer) of his employee to another employer (who may be termed as the temporary employer), over a specified or unspecified period of time. The employee may be loaned with or without plant supplied by the permanent employer. It is submitted that the approach adopted by the courts so as to establish the status of employee is not the same where the transfer of an employee is in question. Case law shows that the emphasis is placed essentially on the control notion. It is not hard to understand the reason why this is so.