Employment Law
Introduction
Generally, employment laws are often put in place to protect the employees from any form of mistreatment by their employers. Without the legal statutes that protect the employees and their terms of employment, workers can be highly vulnerable to unjust treatments by employers. Most of the employment laws protect the employees from different forms of discrimination, workplace health and safety requirements, minimum wage, alongside the child labor laws and the compensation of the workers[1]. In the past years, the response to the employment laws has not been admirable as some of the employers have not been adhering to the standards set in the constitution. The employment laws protect the workers from different forms of violence at the workplace. Before the introduction of some of these laws like the minimum wage laws, the employer would decide on the amount of salary that the employee would get, without any influence of the law. The employment law also protected the terms of contract upon which the employee was to work for the employer[2]. Therefore, before an employee could settle to work for an employer, they would agree to such terms, which included even the compensations that the employee is to get for the job. In the case of the breaches of the regulations that govern the terms of employment, the employee has the opportunity to seek legal assistance.
Forced Retirement
Dimitri has worked in the airline industry for forty years, and therefore, he has a certain level of experience. However, it is just a few months before he can turn 60 years of age and, for that matter, has been informed by Aer Lottery, his employer, that all the company employees have to retire when they reached the age of 60 years. Though this is not indicated in Dimitri’s employment contract, the company makes reference to a close that is in its handbook that had been sent via email to all the employees four years ago. The clause states that; “all cabin crew members must retire when they reach sixty years of age 60 years. This is to ensure that all cabin crew members are healthy enough to carry out their duties. This also ensures intergenerational fairness and offers an opportunity for the younger colleagues to progress in the organization. This is against Dimitri’s wish as he would not wish to retire but instead keep working. He considers this to be a forced retirement as it is against his wish.
In cases where the employee is underperforming, the employer has the right to making redundancies and dismiss an underperforming employee. The decision on an employee’s performance has to rely on an objective understanding and not the age of the employee. Initially, employers used to force a worker to retire when they reach the age of 65 years; however, the law was abolished after a campaign by Age UK. This, therefore, implies that an employee can continue to work after the age of 65 if he or she desires to do so[3]. However, still, there are specific circumstances where an employer can legally force the employee to retire. In such cases, they have to give substantial reasons for the decision of forcing retirement[4]. An employer can force a retirement in a case where the job needs a certain degree of the mental and physical ability which the employee cannot offer after a specific age. Also, the circumstances where the age limit for the job is legally instituted, the employer has the right to force a retirement. In the case of forced retirement, the employer has to follow the right procedure and give the employer notice in advance.
In the case of mistreatment by the employee based on retirement, the employee can choose to take legal action. In some cases, an employer can choose to force a retirement when they realize that the employee’s main focus is on how long he or she will keep working for the company. However, the employee doesn’t need to talk to the employer regarding the plans for retirement if they do not wish to do so. It is right for an employee’s decision to retire to come after a period of analysis and planning. An employee should not be in a hurry or pressure to make a decision on his or her retirement. The employee needs to consider how retirement will affect his or her future life. An employee chooses if he or she wants to claim or delay the state pension payments by choosing to continue working. In the current set up, employees have the right to choose the age at which they are to retire[5]. It is not lawful; however, for an employer to put pressure on an employee to retire or even to retire them forcefully, without an apparent reason. The employee has the right to reject the request of retirement from the employer if it is against their interest.
The employment laws require that the employer does not have a biased judgment on the employee, mainly because of his or her age. The age for retirement is not necessarily the same as to the pension age. The law of equality doesn’t affect the age at which an employee receives the state retirement pension. Likewise, the law does not affect the age where an individual starts receiving the occupational pension, as it is normally decided by the pension scheme rules. Some workers can also decide to go with their jobs after they have attained the age upon which they continue to work after they reach the age where they are entitled to a pension[6]. Depending on the age of the employee, when he or she is dismissed by the employer, variations may be on whether he or she has passed the age of 65 and whether the procedures were followed to the latter. It is, therefore, the obligation of an employer to offer the terms and conditions of employment to the employee just on the first day when they start working.
For the case of Aer Lottery, Dimitri has the right to seek a legal solution for the matter of discrimination based on his age. The act of forced retirement is against the law of as stipulated in the employment act. The law does not have a specific age when an employee has to retire. The reason the company is giving on the reason for a forced retirement is not convincing at all and are basically based on the age factor. The law protects employees from such kinds of decisions by the organization that may be biased at some point[7]. According to the present law, the employee has the right to decide when he is to retire. Therefore, in this case, where Dimitri still doesn’t feel he should retire, the company needs to give him that opportunity to continue with his job as outlined in the law. The company can, however, claim that it had given a clause on the retirement age for the employees. However, the provision is not stipulated as per the available laws. In his contract of employment, the matter of a specific age for retirement did not exist. If any change was to be made, it has to be in accordance with the legal standards. Therefore, for this matter, Dimitri needs to base his argument on the content of the contract he signed for the job. As per the contract of employment, Dimitri has the freedom to accept when to retire from the job[8].
Discrimination While Hiring
The employment lawyers draft the policies that prevent employers from engaging in any form of unfair act that seeks to discriminate elderly employees. Discrimination always arises at times of promotion, disciplinary matters, or when setting salary standards. The lawyers also offer advice both to the employees and the employers on the rules within which they need to create their relationship, based on the available legislations. Having fair opportunities for aging individuals can potentially motivate them to work longer. Also, it is a means of supporting the old individuals to get a perfect balance between employment and other essential factors in life. In the recent past, the number of employed individuals within the age of 50 and 64 has been increasing steadily. For that matter, some of the elderly individuals choose to reduce the number of working hours as they choose to still continue with their jobs[9]. The equality act of 2010 outlines the laws that protect an employee from discrimination based on age.
After Aer airways had informed him that he should be retiring when he reaches the age of sixty, Dimitri comes across an advertisement in a newspaper that stated that Rusty Air was looking for fresh, dynamic, new cabin staff. This comes at a time when Dimitri is still contemplating a life outside the job. Therefore, he chooses to make a trial in the vacancies for the crew cabin staff. Dimitri attended the first walk-in-interview for the job where he was invited for the second and final interview. In the course of the second interview, he was asked why he was still flying at that stage of his life. He is also asked of the questions based on his profession as a crew cabin staff. Further, he was asked how he would come up with taking of instructions from a senior cabin crew staff who, in some cases, might be younger than him. Dimitri did not get the job and felt he was discriminated against on the basis of his age. As a result, Dimitri is considering the right step he can take against the two airlines in the complaint of discrimination.
Retirement matters are always a critical part of the planning for human resource matters within an organization. As such, it usually involves making decisions that can sometimes affect the employees or even the employers themselves. For that matter, legal frameworks have often been used in making decisions for purposes of protecting the interests of both the employer and the employee. For that matter, the new law allows the workers to make decisions on their retirement and retires when they are ready but not when their employers want[10]. It is a matter of discrimination when an employer persuades or require a worker to retire mainly because of their age unless there is an objective reason to justify the decision.
Discriminations occur when an employee or an applicant for a job receives less favorable treatment because of age-based factors. When making critical decisions related to the human resource within a company, an employer is not supposed to show any form of discrimination based on age[11]. The processes as layoffs, promotions, compensations, firing, hiring, training, job assignments, and benefits should not be done based on age. Even in a case where policy seems to be neutral because it affects all the employees, if it does not base on a reasonable factor apart from age, it might still be illegal under the law. The law also protects employees from any form of harassment that is based on age when such behaviors are frequent and cause a hostile environment at the workplace. In some instances, discrimination can result in adverse decisions that are against the interest of the worker[12].
For the case of Rusty air, Dimitri has not been employed by the company and therefore does not have any legal contract that binds him to the company. Though he feels his age was a factor, in the decision not to give him the job, he does not have anything to prove that. Being asked questions related to his age could not be enough to justify the matter as the employer had the right to ask such a question. It is a question based on the personal information of Dimitri that the employer could wish to understand. Therefore, there is no apparent justification that age was the factor for decision making, and also, the company had the right not to employ him. In this case, there is no legal basis upon which Dimitri can sue the company for not giving him the job. The law states that a company needs not to discriminate against an employee based on his age while making recruitments[13]
In conclusion, without the legal statutes that protect the employees and their terms of employment, workers can be highly vulnerable to unjust treatments by employers. In this case, where Dimitri still doesn’t feel he should retire, the company needs to give him that opportunity to continue with his job as outlined in the law. On the other hand, the company can, however, claim that it had given a clause on the retirement age for the employees. It is right for an employee’s decision to retire to come after a period of analysis and planning. An employer can force a retirement in a case where the job needs a certain degree of the mental and physical ability which the employee cannot offer after a specific age. The employment laws require that the employer does not have a biased judgment on the employee, mainly because of his or her age.
Bibliography
Barnard, Catherine. “EU employment law and the European social model: the past, the present, and the future.” Current Legal Problems 67, no. 1 (2014): 199-237.
Countouris, Nicola. The changing law of the employment relationship: Comparative analyses in the European context. Routledge, 2016.
Inversi, Cristina, Lucy Ann Buckley, and Tony Dundon. “An analytical framework for employment regulation: investigating the regulatory space.” Employee Relations, (2017).
O’Sullivan, Michelle, Thomas Turner, Mahon Kennedy, and Joseph Wallace. “Is individual employment law displacing the role of trade unions?.” Industrial Law Journal 44, no. 2 (2015): 222-245.
Painter, Richard, and Ann Holmes. Cases and materials on employment law. Oxford University Press, USA, 2015.
Sargeant, Malcolm. Age discrimination in employment. CRC Press, 2016.
[1] Sargeant, Malcolm. Age discrimination in employment. CRC Press, 2016.
[2] Countouris, Nicola. The changing law of the employment relationship: Comparative analyses in the European context. Routledge, 2016.
[3], Countouris, Nicola. The changing law of the employment relationship: Comparative analyses in the European context. Routledge, 2016.
[4] Sargeant, Malcolm. Age discrimination in employment. CRC Press, 2016.
[5] Countouris, Nicola. The changing law of the employment relationship: Comparative analyses in the European context. Routledge, 2016.
[6] Painter, Richard, and Ann Holmes. Cases and materials on employment law. Oxford University Press, USA, 2015.
[7] O’Sullivan, Michelle, Thomas Turner, Mahon Kennedy, and Joseph Wallace. “Is individual employment law displacing the role of trade unions?.” Industrial Law Journal 44, no. 2 (2015): 222-245.
[8] Barnard, Catherine. “EU employment law and the European social model: the past, the present, and the future.” Current Legal Problems 67, no. 1 (2014): 199-237.
[9] Painter, Richard, and Ann Holmes. Cases and materials on employment law. Oxford University Press, USA, 2015.
[10] Countouris, Nicola. The changing law of the employment relationship: Comparative analyses in the European context. Routledge, 2016.
[11] Sargeant, Malcolm. Age discrimination in employment. CRC Press, 2016.
[12] Painter, Richard, and Ann Holmes. Cases and materials on employment law. Oxford University Press, USA, 2015.
[13] Barnard, Catherine. “EU employment law and the European social model: the past, the present, and the future.” Current Legal Problems 67, no. 1 (2014): 199-237.