Employment law Essay Example | Topics and Well Written Essays - 6000 words

Employment law - Essay Example t or set of circumstances that can arise. This is particularly so in labour industries where economies and policies are constantly changing to accommodate the realities of the times. With so many sources of law and with employment laws perpetually evolving, obtaining a balance can be a mammoth task. However, because the labour market is constantly in a state of change, the need to maintain a balance between legal certainty and fairness for the purpose of avoiding conflict requires that the law changes to meet those challenges. What is legally certain and fair today may not be certain and fair tomorrow. In this regard, the current law reflects the dynamics and demands of labour market changes and the constant demand for labour market reform. This research paper illustrates this best by critically assessing the current labour laws relative to employee status, contractual terms of employment, unfair dismissal and equality. These areas of employment law best illustrate the need for a var iety of sources of flexible laws and the attending challenges for maintaining a balance between legal certainty and fairness. I. Employee Status Historically, the contract of employment makes provision for the basic employee/employer relationship. However, the terms and conditions of that contract have always been interpreted by reference to statute, hence the significance of the term â€Å"status†.5 The fact is, although the employment status may be agreed to and reflected in an employment contract, the matter does not end there.6 This is entirely important because employee status will often correspond with the degree of employee protection and rights. The law therefore intervenes to ensure fairness in the construction of the employment contract with a view to providing a greater degree of legal certainty and fairness in the determination of the employee’s status. The implications are far reaching in terms of creating a balance between fairness and legal certainty. To begin with, the inequality of bargaining power in the employment relationship is well recognized and accepted. As Edwards explains, it was necessary to depart from the concept that employees and employers were at liberty to negotiate and finally reach an agreement as to what will form the essential terms/conditions of the employment contract resulting from the parties’ own different positions in relation to one another. Specifically, party autonomy is undermined because it necessarily levels the playing field between the relative power imbalances between the employee and the employer.7 In this regard, statute intervenes to define the term employee and even then, provides a degree of legal certainty by leaving the definition vague enough to ensure that adjudicators can flexibly determine whether or not employee status can be inferred. To this end Section 230(1) of the Employment Rights Act 1996 provides the term â€Å"employee† refers to a person who either has or â₠¬Å"works under† an employment con