UK labor law pros and cons. Labor law in the UK and the United States. In total, there are three models of regulation of labor relations: continental, Anglo-Saxon and Chinese
- Specialty VAK RF12.00.05
- Number of pages 212
CHAPTER I. Concept, types and content of an employment contract
1. The concept of an employment contract
2. Types of employment contract
CHAPTER II. Conclusion, amendment and termination of an employment contract
Dissertation introduction (part of the abstract) on the topic "Labor contract in England"
The purpose of the dissertation research is to disclose the concept of an individual labor contract in England, study the types of an employment contract and the content of its conditions, consider the theoretical foundations of the institution of an employment contract, generalize the practice of its conclusion, amendment and termination, study of individual provisions and practical problems, including the protection of the rights of the parties to the contract and their responsibility for violations of its conditions, and on this basis, the determination of the prospects for further improvement of Russian labor legislation.
To achieve the goal of the dissertation research, the author set the following tasks:
1. Give a definition of an individual labor contract under the laws of England, show its differences from related civil law contracts and indicate its role in regulation labor relations parties in England.
2. Consider the main types of employment contracts, analyze the content of the employment contract.
3. Consider the procedure for concluding, changing and terminating an employment contract.
4. Writing general characteristics legal means of protecting the rights of the parties to the employment contract, consider the procedure for resolving disputes under the employment contract and the types of liability of the parties.
Methodological basis for dissertation research. When writing the work, they were used as general methods scientific knowledge(analysis, synthesis and comparison) and special legal research methods. The author used the historical-legal and comparative-legal analysis of certain aspects of the institution of an individual labor contract, a generalization of the judicial practice studied by the author on the materials of the cases of the tribunals for labor disputes and the courts of England.
The methodological basis for the development of concepts and their definitions were the laws of formal logic.
When writing the work, the candidate used his own experience in drafting employment contracts, resolving individual labor disputes, including through the courts, acquired while working in England.
The normative basis of the dissertation is the documents of the ILO, legislative acts of the European Union, Great Britain, judicial decisions of the European Court of Justice, courts and tribunals for labor disputes of Great Britain, the Constitution Russian Federation, the laws of the Russian Federation, the work of prominent specialists in the field of labor law.
The theoretical basis of the research. The theoretical basis of the dissertation research is the works of legal scholars: Alexandrov N.G., Glazyrin V.V., Ivanov S.A., Kalensky V.G. Kiseleva I.Ya., Kurennoy AM, Livshitsa R.Z., Mavrina S.P., Machulskaya E.E., Orlovsky Yu.P., Smirnova O.V., Snigireva I.O., Syrovatskaya L.A. , Tolkunova V.N., Shelomova B.A., Shkatulla V.I., Khokhlova E.B. and etc.
In addition, the author used the works of such foreign legal scholars as: Bowers J., Wellington P., Kavanagh J., Napier B., Osman K., Perrins B., Randall N., Selwyn N., Smith I., Thompson A., Upeke R., Furmston M., Shrubsall V. et al.
The scientific novelty of the work lies in the fact that this is the first comprehensive study in Russia devoted to the legal regulation of individual labor contracts in England.
Although domestic science had previously studied individual issues of legal regulation of labor in England1, the issue of the individual labor contract in England has not been comprehensively studied.
This issue was also not specifically considered at the Soviet-British symposium on labor law, held in 1985 at the Academy of Sciences of the USSR.
The applicant reveals the topic of his dissertation work through a comprehensive study of legal relations arising from an employment contract under the laws of England.
The author, making a brief excursion into the history of the development of the institution of the individual labor contract, points out that over time, the individual labor contract has become the main source of regulation of the relations between the parties regarding the sale and purchase of labor in England. The dissertation candidate also notes that an employment contract in England is considered from the same fundamental positions as other commercial contracts, but the principle
1 See, for example, Ivanov S.A. The right to work, Soviet and British approaches. 1989, V.G. Kalensky Legal regulation of labor in the UK. 1964, Kiselev I.Ya. Comparative and International Labor Law. 1999. Machulskaya E.E. The concept and content of an employment contract under the laws of Great Britain. 1997, Yablokova I.A. Collective agreement in England. 1995. Freedom of contract is limited by peremptory norms of statutes and implied conditions developed by common (judicial) law2. The purpose of such a limitation is to achieve a reasonable balance of interests of the parties to the contract.
Exploring the concept of an employment contract under the laws of England, the author notes that the disclosure of this concept is carried out through a system of judicial precedents. At the same time, the English legislator deliberately left the decision of this issue to the judicial authorities, deciding that this concept must be "flexible" so that it can evolve over time and changes in the nature and forms of relations regarding the sale and purchase of labor. For this purpose, the characteristic flexibility of the forms of general (judicial) law is more convenient than the concreteness and unambiguity of the forms of statutory law issued by the Parliament.
The dissertation for the first time provides an overview of the judgments of the English courts and tribunals for labor disputes, containing the main postulates and tests through which the concept of an employment contract in England is revealed.
After analyzing the types and content of employment contracts, the author concludes that in England the parties to an employment contract are free to choose the type and terms of the contract, with the exception of peremptory norms included in the employment contract through the current legislation. The role of centralized regulation is mainly carried out in the field of protecting workers from discriminatory and unfair actions by the employer.
2 Common law refers to the system of case law developed by the courts by adjudicating certain cases that are binding precedent for the lower courts. Another branch of UK law that prevails over common law is statutory law, which consists of legislation passed by Parliament.
Having studied the issues of concluding, changing and terminating an employment contract, the candidate draws attention to the fact that English law does not establish any restrictions on the form in which an employment contract or the procedure for concluding it can be concluded. Under the principle of the inadmissibility of unilateral amendment of the employment contract, the English jurisprudence, realizing that the employment contract, by virtue of its nature, cannot remain static, recognizes the employer's right in certain situations to make reasonable changes to it dictated by production needs, but at the same time he is obliged to observe the interests of the employee. Similarly, the right of the parties to terminate the contract at any time of its validity is recognized. If such termination is made without the presence of legal grounds or in violation of the terms of the contract, the contract will still be terminated, and the injured party will have the right to receive losses arising from such unlawful termination of the contract. From this it is concluded that in England, in case of violation of the terms of the employment contract, the "status quo" is restored by reimbursing the injured party for its losses, and not by coercive measures of a different nature.
Considering the issues of protecting the rights of the parties to an employment contract and their responsibility for violations of its terms, the dissertation student reveals the nature of the interaction between the methods of protecting rights through general (judicial) law and the methods of protection provided for in the statutes. The conclusion is made about the plurality of methods of protection and responsibility of the parties under the employment contract.
Describing the structure and powers of the bodies considering disputes under an employment contract and the procedure for their consideration, the author notes the advantages of specialized bodies for resolving labor disputes.
Thus, the dissertation for the first time reveals the concept, role and significance of an individual labor contract in England as the main source-regulator of relations between the parties on employment and labor issues, analyzes the types of an employment contract, details the main types and individual conditions of employment contracts, considers issues of concluding, changing and termination of the contract, protection of the rights of the parties to the employment contract and their responsibility for violations of its terms.
In the work, the applicant identifies the following main provisions for the defense.
1. In English, as in Russian labor legislation, labor relations are regulated at various levels - individual, collective, local and centralized. However, in
In England, the parties to an employment contract are given greater freedom to determine the terms of an employment contract, and the role of centralized regulation is mainly carried out in the field of protecting workers from discriminatory and unfair actions of the employer. An individual labor contract in England is the main source of regulation of relations between the parties regarding employment and labor, and, with the exception of mandatory legal provisions, the parties are free to establish any conditions in the contract.
2. Contract law is a separate branch of English law that establishes general provisions on contracts applicable to any type of contract regardless of the object. It follows from this that although there are certain specific provisions inherent only in an employment contract, generally English law approaches the examination of an employment contract from the same fundamental positions as when considering other types of contracts.
3. Due to the specifics of the sources of the English legal system, in which judicial precedent plays an important role, a characteristic feature of the employment contract in England is the constant adjustment of the interpretation of standard clauses through judicial decisions in certain cases. Initially, labor and recruitment issues were fully regulated by judicial law. Only since the beginning of the 70s has been active development labor legislation through the legislative activities of the Parliament. The last two decades have been characterized by an active influence of the European Union's legislative activity on the labor legislation of England. Differences in the legal systems of the UK and continental EU member states are often the cause of differences in the interpretation of EU directives and regulations. The European Court of Justice plays a leading role in ensuring the uniform interpretation and application of European law.
From this it is concluded that modern labor law in England is characterized by a variety of sources, which sometimes leads to conflicts of norms.
4. Although the Employment Rights Act contains a definition of an employment contract, this concept is disclosed in England through a system of judicial precedents. Courts apply a number of criteria and tests when deciding on the existence of an employment contract and differentiating it from related civil law contracts.
5. Disclosing the concepts of a fixed-term and indefinite employment contract, the author points out that there are no restrictions in English law on the conclusion of a fixed-term employment contract. At the same time, the legislation is steadily evolving towards equalizing the rights of workers under a fixed-term and indefinite employment contract, including the right not to be unfairly dismissed at the end of the contract term. Thus, English law protects workers hired under a fixed-term employment contract, not by prohibiting the conclusion of such contracts (with the exception of certain conditions), but by equalizing the rights of workers under fixed-term contracts with the rights of workers hired on a permanent basis.
6. Considering the content of the employment contract, the dissertation candidate notes the presence of four main types of conditions of the employment contract: conditions expressed explicitly; included in the agreement through the current legislation; implied conditions; incorporated terms. The principle of freedom of contract, which is the cornerstone of English contract law, also applies to an employment contract. However, due to the existence of peremptory norms of labor law and implied conditions, the scope of this principle in the employment contract is limited. A characteristic implicit condition inherent in all employment contracts is the condition of mutual respect and trust between the employee and the employer. This condition "qualifies" other provisions of the employment contract, including those explicitly expressed. This means that a party to the contract should not use its rights under the contract in violation of the terms of mutual respect and trust. Moreover, this condition is considered an essential condition of the contract, the violation of which gives the injured party the right to terminate the employment contract and demand compensation. The employer's actions that violate this condition will be regarded as the dismissal of the employee, which gives the latter the right to claim protection under the law on unfair dismissals.
7. English law does not contain any instructions on the form or procedure for concluding employment contracts, however, obliges the employer to provide the employee within 2 months from the start of work with the conditions of his employment in writing. In practice, employment contracts are concluded in writing and contain detailed conditions governing labor, pay, vacations, medical and retirement services, etc. gender, marriage, race, disability and union membership.
8. When the enterprise is transferred to a new owner, labor relations are preserved. The concept of a transfer of an enterprise includes the transfer of assets of an enterprise without a transfer legal entity the new owner, as well as the transfer of any single operational function of the enterprise to a third party. The concept of "enterprise" is interpreted very broadly, it can even include only any single labor function, for example, cleaning premises, cooking, transportation, etc.
9. English law does not contain a single list of grounds for terminating an employment contract. The concept of "termination" of an employment contract is revealed through a system of judicial precedents. Statutory law contains the concept of "dismissal" of an employee, and not every termination of an employment contract will constitute a "dismissal". The dismissal of an employee is of particular importance, since only in the presence of the fact of dismissal, an employee can resort to protective measures legislation on unfair dismissals.
10. Characteristic feature protection of the labor rights of the parties under the laws of England is a plurality of methods of protection of rights based both on the principles of common law and on the provisions of the statutes. English law does not provide for a single control and supervisory body in the field of protection of labor rights. The functions of control and supervision over the observance and protection of the rights of the parties to the labor contract are carried out by the state bodies of the judicial and executive power, Quasi-State Commissions on Discrimination Issues, Consulting, Mediation and Arbitration Dispute Resolution Service. The protection of the labor rights of the parties in certain areas can also be carried out through the mechanisms provided for in collective agreements and through self-defense.
11. England has a system of labor tribunals through which the vast majority of labor and employment disputes are resolved. This system is a fast and efficient mechanism for resolving labor disputes.
12. Issues of liability under an employment contract in England are dealt with in accordance with the general principles of contractual liability. However, since the employment relationship is personal in nature, the employee may be subject to a special type of responsibility that does not take place in civil law relations - disciplinary responsibility. The parties to an employment contract have the right to establish, at their discretion, specific measures of responsibility for violation of certain conditions of the contract, including fines. The parties also have the right to establish provisions that exclude or limit the liability of the parties under the employment contract. However, such provisions should not contradict the current legislation and the principle of reasonableness.
The scientific and practical significance of the work is as follows:
The analysis of the law enforcement practice of the courts of England, given by the author in the work, can be additional theoretical material when improving the relevant provisions of Russian legislation on labor contracts.
A number of the considered conditions of an employment contract in England can be applied in domestic practice when drawing up employment contracts.
Work can be used in teaching training course and special courses on labor law in law schools and other educational institutions.
Conclusion of the thesis on the topic “Labor law; social security law ", Klimov, Pavel Valentinovich
CONCLUSION
In conclusion, I would like to highlight the following main theoretical provisions studied in the dissertation and submitted by the author for defense, as well as to note those practical provisions that, in the author's opinion, are the most interesting from the point of view of possible application in improving domestic legislation on labor contracts:
268 Provided they comply with the provisions of the Employment Rights Act and the Unfair Contractual Conditions Act above.
1) In English, as in Russian labor legislation, labor relations are regulated at various levels - individual, collective, local and centralized. However, in England parties to an employment contract are given greater freedom to define the terms of an employment contract, and the role of centralized regulation is mainly in protecting workers from discriminatory and unfair employer actions. An individual labor contract in England is the main source of regulation of relations between the parties regarding employment and labor, and, with the exception of mandatory legal provisions, the parties are free to establish any conditions in the contract.
2) Contract law is a separate branch of English law that sets out general contractual provisions applicable to any type of contract, regardless of the object. It follows from this that although there are certain specific provisions inherent only to an employment contract, generally English law approaches the examination of an employment contract from the same fundamental positions as when considering other types of contracts. For example, there is no difference in deciding the question of the method or moment of concluding an employment contract or a civil law contract. Also, many of the conditions incorporated by default (implied conditions) in a civil contract will act similarly by default in an employment contract. In this sense, in English law there is no question of the applicability of provisions relating to civil contracts to employment contracts. Although, of course, there are certain features inherent only in labor contracts, for example, issues of responsibility of the parties for violations of the terms of the contract, implied conditions of trust and confidentiality, etc. The author believes that certain fundamental provisions of Russian civil law can also be successfully applied to the relations of the parties employment contract, and should not be limited regulatory framework regulating legal relations arising under an employment contract, only by the norms enshrined in labor laws.
3) Due to the specifics of the sources of the English legal system, in which judicial precedent plays an important role, a characteristic feature of the employment contract in England is the constant adjustment of the interpretation of standard clauses through judicial decisions in certain cases. Initially, labor and recruitment issues were fully regulated by judicial law. Only from the beginning of the 70s, there has been an active development of labor legislation through the legislative activities of the Parliament. The last two decades have been characterized by an active influence of the European Union's legislative activity on the labor legislation of England. Differences in the legal systems of the UK and continental EU member states are often the cause of differences in the interpretation of EU directives and regulations. The European Court of Justice plays a leading role in ensuring the uniform interpretation and application of European law. Modern labor law in England is characterized by a variety of sources, which sometimes leads to conflicts of norms.
4) Although the Employment Rights Act contains a definition of an employment contract, this concept is disclosed in England through a system of court precedents. Courts apply a number of criteria and tests when deciding on the existence of an employment contract and differentiating it from related civil law contracts. It seems that a number of such features, developed by the English courts, can be successfully borrowed for use in domestic practice.
5) There are no restrictions on the conclusion of a fixed-term employment contract in English law. At the same time, legislation is steadily evolving towards equalizing the rights of workers under a fixed-term and indefinite employment contract, including the right not to be unfairly dismissed at the end of the contract term. Thus, English law protects workers hired under a fixed-term employment contract, not by prohibiting the conclusion of such contracts (with some exceptions subject to certain conditions), but by equalizing the rights of workers under fixed-term contracts with the rights of workers hired on a permanent basis. It seems that this approach is in line with the interests of employers who are not limited in freedom of conclusion. fixed-term contracts and the interests of employees, whose rights are not infringed upon due to the fact that their contract is urgent.
6) English law identifies four main types of conditions of an employment contract: conditions expressed explicitly; included in the agreement through the current legislation; implied conditions; incorporated terms. The principle of freedom of contract, which is the cornerstone of English contract law, also applies to an employment contract. However, due to the existence of peremptory norms of labor law and implied conditions, the scope of this principle in the employment contract is limited. A characteristic implicit condition inherent in all employment contracts is the condition of mutual respect and trust between the employee and the employer. This condition "qualifies" other provisions of the employment contract, including those explicitly expressed. This means that a party to the contract should not use its rights under the contract in violation of the terms of mutual respect and trust. Moreover, this condition is considered an essential condition of the contract, the violation of which gives the injured party the right to terminate the employment contract and demand compensation. The employer's actions that violate this condition will be regarded as the dismissal of the employee, which gives the latter the right to claim protection under the law on unfair dismissals. Since judicial precedent is not a source of law under Russian law, the author believes that it would be justified to introduce a legislative norm requiring the parties to an employment contract to act in a respectable manner (without violating the relationship of mutual trust and respect) in fulfilling their obligations under the employment contract.
7) English law does not contain any instructions on the form or procedure for concluding employment contracts, however, it obliges the employer to provide the employee with the conditions of his employment in writing within 2 months from the start of work. In practice, employment contracts are concluded in writing and contain detailed conditions governing labor, pay, vacations, medical and retirement services, etc. gender, marriage, race, disability and union membership.
8) As in Russian labor legislation (Article 75 of the Labor Code of the Russian Federation), in England, when an enterprise is transferred to a new owner, labor relations are preserved. However, the concept of a transfer of an enterprise includes the transfer of the assets of an enterprise without transferring a legal entity to a new owner, as well as the transfer of any single operating function of the enterprise to a third party. The concept of "enterprise" is interpreted very broadly, so that it can even include only any single work function, for example, cleaning premises, cooking, transportation, etc. The experience gained in England and other EU countries on this issue can be successfully borrowed in domestic practice when resolving disputes under Art. 75 of the Labor Code of the Russian Federation.
9) English law does not contain a single list of grounds for terminating an employment contract. The concept of "termination" of an employment contract is disclosed through a system of judicial precedents. Statutory law contains the concept of “dismissal” of an employee, and not every termination of an employment contract will constitute a “dismissal”. The dismissal of an employee is of particular importance, since only in the presence of the fact of dismissal can the employee resort to protective measures of the legislation on unfair dismissals. Dismissals made by the employer, except in rare cases, will be valid even if the termination procedure was violated or there was no good reason for it. The employer is naturally liable for such unfair actions, which most often boil down to a limited monetary compensation. It is very rare for an employee to count on reinstatement at work, although such a measure is provided for in the legislation. It seems that the position of the British labor tribunals, which prefer the award of monetary compensation for unfair dismissal, rather than reinstatement of the employee at work, is very reasonable. Such a measure, on the one hand, compensates the employee for his losses in connection with the loss of his job, and on the other hand, resolves the labor conflict that caused the employee's dismissal, while “not imposing” an unwanted employee on the employer.
10) A characteristic feature of the protection of the labor rights of the parties under the laws of England is the multiplicity of methods of protection of rights based both on the principles of common law and on the provisions of the statutes. English law does not provide for a single control and supervisory body in the field of protection of labor rights. The functions of control and supervision over the observance and protection of the rights of the parties to the labor contract are carried out by the state judicial and executive authorities, quasi-state commissions on discrimination issues, the Service for Consulting, Mediation and Arbitration Dispute Resolution. Also, the protection of the labor rights of the parties in certain areas can be carried out through the mechanisms provided for in collective agreements and through self-defense.
11) England has a system of labor tribunals through which the vast majority of labor and employment disputes are resolved. This system is a fast and efficient mechanism for resolving labor disputes. The author supports the idea of creating specialized courts (tribunals) in Russia to resolve disputes arising from labor relations.
12) Issues of liability under an employment contract in England are considered using the general principles of contractual liability. However, since the employment relationship is personal in nature, the employee may be subject to a special type of responsibility that does not take place in civil law relations - disciplinary responsibility. The parties to an employment contract have the right to establish, at their discretion, specific measures of responsibility for violation of certain conditions of the contract, including fines. The parties also have the right to establish provisions that exclude or limit the liability of the parties under the employment contract. However, such provisions should not contradict the current legislation and the principle of reasonableness.
The experience gained in England on the labor law issues discussed in the dissertation can be of great theoretical and practical value for Russian labor law scholars working on improving Russian labor legislation. Further study of English labor law, according to the author, is a necessary element of the ongoing work to modernize Russian labor law.
List of dissertation research literature Candidate of Legal Sciences Klimov, Pavel Valentinovich, 2002
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Comparative analysis of legal regulation of labor relations in Russia, France, USA and Great Britain
Filipova Irina Anatolievna
Associate Professor at the Department of Civil Law and Process of the Faculty of Law
Candidate of Legal Sciences, Associate Professor
National Research Nizhny Novgorod State University them. N.I. Lobachevsky
In world practice, there are two main models of legal regulation of labor relations, each of them has its own advantages and disadvantages. The Russian Federation is based on the European model of legal regulation. The same model is used in France. The European model of legal regulation of labor relations is distinguished by a social orientation and significant burdens for employers. The United States and Great Britain are the countries that created the Anglo-Saxon model of legal regulation of labor. This model differs significantly from the European one, first of all, by a shift in emphasis from social factors on the priority of freedom of economic development. The Anglo-Saxon or European models are borrowed by most countries, in a number of countries, such as China, the states of Latin America, they are used in combination. The labor legislation of countries using the same model has some similarities. For example, French legislation and Russian labor legislation, which have a strong social orientation, include many similar norms. For comparison, the labor law of states belonging to the Anglo-American system has "flexibility", which allows more freedom to build labor relations, contributing to the development of the labor market and the achievement of high results of economic development.
Key words: labor relations, labor contract, employer, employee,terms of an employment contract
Labor relations are indispensable social system in any modern society... Regulation of labor relations is necessary to preserve social peace. Legal regulation of labor relations in different countries is based on different models. There are two main models: European (Continental) and Anglo-Saxon (Anglo-American). Countries using the first model include Russia, France, Germany, and most other European countries. The second model is used in the USA, UK, Australia, New Zealand, etc.
Legal regulation of labor and economic development of the country are closely interconnected. The choice of a model of legal regulation of labor relations has an impact on the economy of the state, and the level of development of economic relations has an impact on labor relations and legal regulation in the state.
The European model of legal regulation of labor relations includes a high level of social guarantees for workers. Labor legislation is aimed at preserving jobs. There is a high statutory minimum wage level and a relatively low differentiation of wages.
European economic model characterized by:
The strong influence of the state on the economy (through significant social obligations of the state in the field of medicine, education);
Social orientation of legislation (fight against social inequality, protection of social rights of workers, including social guarantees in case of illness, unemployment, retirement);
The development of social partnership, which implies the participation of employees in the management of the organization.
If the advantage of the European model of legal regulation of labor relations is the provision of a high level of social guarantees for workers, then the disadvantages of this model include:
Increase in employers' expenses to ensure social guarantees stipulated by law;
An increase in the number of "social dependents" who do not want to work, living on social benefits;
Increasing the financial burden on the most economically active citizens such as entrepreneurs (through taxes and workers' compensation) and skilled professionals (through the distribution of benefits to all).
The Anglo-Saxon model assumes a minimal regulatory role of the state in the economy with a small share of state ownership, as well as all-round encouragement of entrepreneurship, which entails a sharp division into rich and poor, significant differences in wages. This model is characterized by:
Significant freedom of the employer in terms of hiring and firing;
- "closeness" between labor and civil law;
Development of social partnerships at the enterprise level, but not the industry or region;
Labor mobility.
The advantage of the Anglo-Saxon model is economic freedom (freedom of entrepreneurship), which stimulates economic growth; the disadvantages of this model include:
The risk of an increase in the level of social tension in society (due to an insufficient level of social guarantees);
Deterioration of the health status of workers due to strong competition for jobs (decline in the quality of labor resources).
Depending on the model adopted, the employment contract as the most important element employment relationship, which establishes the rights and obligations of the parties, is regulated by the labor legislation of the states in question in different ways.
According to article 56 of the Labor Code of the Russian Federation, an employment contract is an agreement between the employer and the employee, in accordance with which the employer undertakes to provide the employee with work for a certain labor function, to ensure the working conditions stipulated by labor legislation, to pay wages in full and on time; the employee undertakes to perform this labor function, to carry out the work personally and to comply with the internal labor regulations in force for the given employer.
The Labor Code of France (Code du travail) does not define the concept of "employment contract", but back in 1954 this concept was formulated by the French Court of Cassation: an employment contract - le contrat de travail - is an agreement under which one party (employee) is hired to fulfill work for the benefit of the other party (employer) and under its management for remuneration.
There are no labor codes in the UK and USA. Labor relations are regulated by a whole array of various laws, and in the United States, a significant part of labor law norms are concentrated in the laws of individual states. An important source of labor law in these countries is judicial precedent.
The concept of an employment contract contract) is absent from British law. By studying a number of judicial precedents, it can be concluded that an employment contract in the UK does not have a clear distinction from civil law contracts. Labor relations are considered as relations of legally equal subjects in fact for the sale and purchase of labor, however, the "socialization" of labor legislation is gradually taking place through the creation of a certain system of guarantees for employees under an employment contract.
There is also no definition of an employment contract in US law. In the American legal literature, an employment contract is viewed as an agreement between an employee and an employer about the terms of employment. Thus, the concept of an employment contract in the UK and the USA differs significantly from its interpretation in Russia and France, where the contract is an instrument social protection employee.
It should be noted that of all the countries considered in this article, the written conclusion of an employment contract is mandatory only in Russia. According to article 67 of the Labor Code of the Russian Federation, an employment contract is drawn up in writing in two copies, one for each of the parties.
In France, the written form is only required for a fixed-term employment contract. The employer must send the employee a copy of the employment contract within two days, otherwise the fixed-term employment contract will be transformed into an agreement concluded for an indefinite period. As a general rule, in France, as in Russia, an employment contract is concluded for an indefinite period. Such an agreement can be concluded orally, but the employer is obliged to send the employee a written confirmation within two months from the date of its conclusion.
In the UK, the law does not require the employer to enter into a written employment contract, but the employer must provide the employee with the terms of employment in writing no later than two months after the start labor activity, therefore, in practice, employment contracts are usually drawn up in writing.
US law does not require a mandatory written employment contract; in practice, there are three possible forms of contract:
Written employment contract;
Oral contract;
Implied contract
An oral contract is considered concluded if the employer and the employee agree on the type of work (job function), the time of its beginning and the amount of remuneration. In the event of a dispute, it will be difficult for the employee to prove the terms of the contract and defend his rights. An implied contract, unlike a written one, is not a single document, it consists of written and oral promises of the employer. A mandatory written form of an employment contract is provided only when hiring seafarers to work on large ships.
The principle of the prohibition of discrimination in the field of labor relations is one of the most important principles of labor law in Russia, France, as well as in the UK and the USA.
Article 57 of the Labor Code of the Russian Federation establishes the following mandatory conditions of an employment contract:
Place of work;
Labor function - work in a specific position, profession, specialty with an indication of qualifications;
Date of commencement of work, and if the contract is urgent - the period of its validity and the reasons for the urgency in accordance with labor legislation;
Salary;
Compulsory social insurance of the employee;
Working conditions at the workplace;
Mode of operation, if different from general rules concerning all employees of the organization;
Compensation for harmful and hazardous work;
The nature of the work (mobile, traveling, etc.)
The last three conditions should be fixed only in the employment contract with the employee, whose work will take place in the appropriate circumstances.
Article 57 of the Labor Code of the Russian Federation also defines possible additional conditions contracts: clarification of the place of work, probationary period, non-disclosure of secrets protected by law, etc. The list of additional conditions is not limited by this article of the law and can be expanded by the parties to the employment contract, provided that the contract does not worsen the employee's position in comparison with the law.
As an example of an additional term of an employment contract, we can consider a test condition. When an employer hires a new employee, he has the right to establish a probationary period for the employee up to 3 months. Articles 70 - 71 of the Labor Code of the Russian Federation allow the employer to include this condition in the employment contract. About duration probationary period the parties to the employment contract agree before concluding the contract. Russian labor legislation allows for a longer probationary period for executives (up to 6 months) or more short term for temporary or seasonal workers (up to 2 weeks).
Article 58 of the Labor Code of the Russian Federation names two types of an employment contract: an agreement for an indefinite period and an agreement for a specific period not exceeding 5 years. The conclusion of a fixed-term employment contract is allowed only in cases provided for by article 59 of the Labor Code of the Russian Federation, for example, for the period of performance of the duties of an absent employee, for the duration of seasonal work, etc.
As a general rule, French labor law also stipulates that an employment contract is concluded for an indefinite period. However, according to article L1242-2 of the French Labor Code, a contract can be concluded for a specified period to replace a temporarily absent employee and in some other cases. The maximum duration of a fixed-term employment contract is 2 years. The contract can be renewed only once.
The prerequisites for an employment contract in France include:
Employee position;
Employee's professional qualifications;
Wages;
An indication of a collective agreement, agreement related to the employee;
The term of the contract (definite or indefinite).
In addition, the French employer is obliged to inform his new employee of the information that each employee can exercise the right to Professional Development at least once every two years. This is provided for by the Law of March 5, 2014 "On vocational training, employment and social democracy" (La loi n ° 2014-288 du 5 mars 2014 relative à la formation professionnelle, à l "emploi et à la démocratie sociale). The employer also is obliged to facilitate the adaptation of the employee to the new workplace.
In France, the law establishes the obligation for the employee to be loyal to the employer - this is fixed in article L1222-5 of the French Labor Code and means that the employee must refrain from actions that are contrary to the interests of the employer. Judicial practice considers such actions of an employee as a violation of this obligation:
Disclosure of confidential information;
Using the property of the employer without his permission;
Hidden work for clients of the employing company, etc.
Possible additional conditions of an employment contract in France are the conditions on the probationary period and on the specifics of the working hours.
The test condition under French law is regulated differently than in Russia. Article L1221-19 of the French Labor Code sets a maximum probationary period of 2 months for workers and employees, 3 months for mid-level professionals and 4 months for managers. The law allows a one-time extension of the probationary period within the period stipulated by the industry agreement. In total, the trial period should not exceed 4 months for workers, 6 months for specialists and 8 months for managers.
French courts generally recognize the following additional conditions permissible in order to protect the interests of employers:
The condition for the employee to reimburse the costs of paying for his training in case of early dismissal of his own free will;
Non-disclosure clause of confidential information;
Condition on the employer's right to inventions made by the employee;
Non-competition clause;
Condition of mobility.
The last two conditions cannot be included in an employment contract in Russia, since they worsen the employee's position in comparison with the law. The non-competition clause obliges the employee not to work in competing companies after dismissal. The employer must, in turn, pay a monthly compensation to the former employee in the amount of 25 to 40% of his salary. The term of the non-compete agreement, as a rule, is no more than two years from the date of dismissal. The maximum term is not limited by law, it is determined in an industry agreement or collective agreement.
The mobility clause in the employment contract allows the employer to change the employee's place of work, including by transferring him to another locality without changing the job function. An employee cannot refuse such a transfer without a valid reason.
UK legislation allows the parties to an employment contract to independently choose the type of employment contract - fixed-term or for an indefinite period; there are no strict legal restrictions on the terms of the contract. The law protects employees only from discriminatory actions by employers. Section 1 of the Employment Rights Act of May 22, 1996 requires employers to provide the following information in writing no later than two months from the date of employment:
Name of company;
Position or description of job function, job responsibilities;
Start date of work;
The amount and frequency of payments;
Working hours, indicating, if necessary, work on weekends, night or overtime work;
Vacation and non-working holidays etc.
The employee must also be given information in writing that the work is temporary (if it is temporary), information on the expiration date of the contract (if the contract is urgent), on the period of notice of dismissal, on the current collective agreement, on the possibility of appealing against the employer's decisions, etc. .d.
Previously, UK labor law recognized that an employment contract could be "implicit", that is, based on actual circumstances, it could be orally, or it could be specified in a written contract that an employee is hired on terms determined by the employer. Over time, British law has increased the level of guarantees for workers, in particular, equalizing the rights of an employee with whom a fixed-term employment contract is concluded with the rights of an employee under an indefinite contract. Legislation prohibiting unjustified dismissal becomes important element protection of labor rights. The Law on Rights in the Field of Employment establishes restrictions on the duration of working hours and work on weekends, guarantees for wages, compensation for damage caused to the health of an employee, etc.
All terms and conditions of the employment contract in accordance with British law and the prevailing jurisprudence can be divided into:
Mandatory conditions;
Conditions included in the contract through applicable law;
Implied terms;
Incorporated terms.
Implied conditions become an integral part of the contract, even if they are not mentioned in it, for example, the implied condition of any employment contract is the condition of mutual respect and trust between the employee and the employer. This condition is considered essential. Violation of this condition gives the other party the right to terminate the contract and demand compensation. Another implied condition: the employer is obliged to provide a safe working environment.
An employment contract in the UK, as well as in Russia and France, may include a clause allowing the employer to reimburse the employee's training fee if the contract is terminated early.
As in France, in the UK, a non-competition clause may be included as an additional clause in an employment contract. Unlike French law, British law does not oblige the employer to pay material compensation to the employee for refusing to work in competing organizations.
British labor law has changed a lot in recent decades under pressure from trade unions and as a result of the country's membership in the European Union. British law is more similar to the law of European countries in comparison with American law.
In the United States, the rights and obligations of employers and employees are not enshrined in a single law; they are contained in various federal laws and laws of individual US states. The basic rights of employees are recognized:
The right to be protected from discrimination;
Eligibility for overtime compensation;
The right to rest;
The right to terminate an employment contract at any time and for any reason (the employer has a similar right).
Labor law in the United States does not protect an employee from being fired at the discretion of the employer without any specific reason, other than prohibiting dismissal on discriminatory grounds.
Although US federal law contains only the basics of legal regulation of labor relations, in practice, the terms of payment are mentioned in employment contracts. overtime work, on the payment of compensation for injuries, on bonuses, etc.
US labor law does not regulate the duration of an employment contract. The law does not limit the employer's right to establish the term of the contract and the conditions for its conclusion, as well as the period of the probationary period. The probationary condition is usually fixed in a collective or labor agreement, and the probationary period lasts from 2 to 6 months.
Based on the analysis of labor legislation in the above countries, the following conclusions can be drawn. In the countries of the Anglo-Saxon model, legislation plays a relatively small role in labor relations, the most important source of law is judicial practice (precedent). In addition, in these countries, an employment contract is a fairly flexible tool that allows an employer to include in it conditions that would infringe on the employee's rights, which is unacceptable under Russian law. At the same time, the flexibility of legislation creates additional opportunities in the labor market and contributes to the improvement of the economy of the state, which uses the Anglo-Saxon model of regulation of labor relations. An analysis of judicial practice in the field of labor law in these countries suggests that since the end of the 20th century there has been a tendency to increase the share of the "social" component in the legal regulation of labor relations. For example, in the UK there is a gradual "socialization" of labor legislation by creating a system of guarantees for workers, which does not allow the employer to terminate the employment contract without a specific reason.
Some trends in the socialization of labor legislation are also present in American legislation. Recently, the employer has no right to prohibit employees from disclosing information about their salaries. Under new NLRB regulations, companies that seek to deprive workers of the right to negotiate work conditions and pay are violating the National Labor Relations Act (NLRA) of July 5, 1935.
Since the Anglo-Saxon model allows employers to more flexibly respond to the real situation, the advantages of this model, if borrowed moderately, can be beneficial for the development of the labor market in countries. continental model... For example, French jurisprudence has already recognized the employer's right to include additional conditions in the employment contract to protect their interests. This right allows the employer, under certain economic conditions, to transfer the employee to another place of work, even to another locality. The French government demonstrates its intention to adopt elements of the Anglo-Saxon model through the approval of the Concept of Labor Law Reform, developed in France in 2015-2016. Most likely, in the near future, French employers will have the right to lay off workers at lower costs, change work regimes, which will ensure the flexibility of the labor market.
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that the system of such participation is an attribute of the welfare state, and it does not contradict the idea of a market economy. However, the legal regulation of these relations is a rather difficult task, since the granting of certain rights to a collective of workers is associated with a restriction of the employer's rights, his entrepreneurial freedom. The adoption of balanced legislation in this area is possible in a few countries with a socially oriented market economy... The undisputed leader, according to the authors, is Germany. The effectiveness of the German system is largely due to the detailed legal regulation and the possibility of replacing the agreement on mandatory issues by a court decision. However, such a mechanism works with a clear delineation of those issues on which the employer and labor collective have common goals, and those on which their interests do not coincide.
E.V. Alferova
2010.03.043. N.L. LIUTOV UK COLLECTIVE LABOR LAW. - M .: Walters Kluver, 2009 .-- 232 p.
The legal institution of social partnership, or, according to the terminology adopted in the West, social dialogue, also called collective labor law, in Russia and Great Britain has a fundamentally different character. In Russia, the most important characteristic of social relations in the world of work can be called state paternalism and significant state interference in labor law. Quite the opposite was the case in Great Britain, where a system based on the voluntary nature of negotiations and substantial autonomy of the negotiating parties with little government interference was established. State policy and jurisprudence in this country have traditionally been aimed largely at restricting trade union rights. Accordingly, trade unions are used to mistrust of the state, judges and laws. The development of social partnership here is mainly dictated by social movements and the judiciary, and public policy reflects reactions to these impulses, the author writes.
In the UK today, there is no longer any discussion of the right to join trade unions. This right is recognized as an integral part of a democratic society. Nevertheless, despite the ratification of international instruments on freedom of association, UK domestic law has for a long time recognized the possibility of forming trade unions only as a “negative” right, i.e. through the use of the construct "immunity" from liability for participation in trade unions. Traditionally, the common law of this country recognized that the very existence of trade unions is a restriction on the freedom of contract between the employee and the employer, especially when it came to holding strikes and establishing the “closed shop” condition. In Great Britain, it is customary to distinguish two models of "closed shop": the so-called pre-entry and post-entry closed shop. In the first (more rare) case, the employee is hired if he is not a member of the relevant trade union at the time of employment, and in the second, as one of the conditions in the employment contract, the employee's obligation to join a trade union is included. The consequence of this position was the recognition as null and void agreements on membership in trade unions. Under the Consolidated Trade Unions and Labor Relations Act 1992, all workers, except police and military personnel, can organize and join trade unions. To date, the “closed shop” system has been replaced by single union agreements, which imply that the employer recognizes only one union as a collective bargaining agent. Current UK law also prohibits the deduction from the wages of non-union workers equal to union dues. Analysis of the content of the right to associate in the UK allowed the author to highlight two interesting aspects of the issue: the absence of a tradition of securing this right at the legislative level (it appeared in domestic legislation only in 1998) and, conversely, detailed regulation of anti-professional discrimination and sanctions against employers in if the fact of its presence is established.
In order to effectively represent its members, a union must meet three requirements: First, it must meet
to support the legislative definition of a trade union; secondly, to be independent; and thirdly, to be recognized by the employer. The author describes the types of trade union organizations (open, closed), their legal status, the procedure for recognizing trade unions for collective bargaining. He believes that the provisions of British legislation concerning trade union independence are of interest from the point of view of possible implementation in Russian legislation. Nevertheless, it is obvious, the author stresses, that most of the norms concerning the activities of British trade unions cannot be borrowed for Russia due to completely different traditions in the field of labor relations.
A characteristic feature of British law, according to the author, is the chaotic and unsystematic structure of the levels of collective bargaining. The absence of mechanisms for automatically including the provisions of collective agreements into individual labor contracts is also called a significant difference from world practice. In the legal systems of almost all countries of the world, it is stipulated that the deterioration of individually collectively established working conditions is unacceptable - the so-called ad favorem principle (lat. - in favor). In the UK, it is not possible to enforce a collective agreement for an individual worker, even when the employer is the direct party to the agreement.
Exploring the system of collective regulation of relations between workers and employers, the author notes that a new form of such regulation has appeared in the UK, complementing collective agreements. These acts are called workforce agreements. An important feature of such agreements is that workers' representatives entering into agreements with staff are not required to meet the independence criterion required of collective bargaining unions.
The monograph reveals a flexible and informal approach to the procedure for alternative resolution of labor disputes in a given country. The work experience of specialized bodies of labor jurisdiction (labor tribunals) considering individual
nal labor disputes seem to be interesting and useful for Russia. According to the author, the possibility of collective labor disputes (and strikes) over mass layoffs of workers, which is absent in current Russian legislation, should also be perceived as a good model.
E.V. Alferova
2010.03.044. RIGHTS OF EMPLOYERS IN LABOR RELATIONS / Ed. count Abramova O.V., Zandanov I.V., Korshunova T.Yu. and etc.; Resp. ed. Nurdinova A.F., Chikanova L.A. - M .: Eksmo, 2009 .-- 301 p.
The monograph examines the legal aspects of employers' activities in the selection and management of personnel, legal status and rights when concluding and terminating an employment contract, organizing and conducting certification, in the field of vocational training, retraining and advanced training of employees. The article examines the issues of the implementation of the employer's normative power, the procedure for the implementation of local regulation, social partnership, legal protection of the rights of employers, including in court.
As Doctor of Law AF Nurdinova notes in the introduction, "unlike most works on labor law, this book has chosen a somewhat unusual perspective: the emphasis is not on the rights of workers and not on guarantees of their implementation, but on the powers of the employer." She explains this approach by the fact that it is sometimes forgotten that the functioning of the employee protection system established by labor legislation is impossible without the participation of the employer, who is a key figure in the organization of the labor process and labor management. For almost any action related to the exercise of his right, the employee must resort to the help of the employer. Thus, the right to annual leave is exercised in accordance with the vacation schedule approved by the employer and on the basis of an order for granting leave; the rights to healthy and safe working conditions are ensured by the activities of the employer; the right to timely and full payment of wages cannot be exercised without the employer accepting the appropriate
Employees in the UK have certain rights and protections under labor law, including the right to file an out-of-court complaint with an employer and the right not to be unfairly dismissed. A complaint can relate to any problem, any issue that the employee can discuss with the employer, and can relate to various aspects of employment.
From the moment the employee lodged a complaint, the employer is obliged to conduct an internal investigation, as well as meet with the employee to discuss the issue in more detail. The employer must then communicate its decision on the complaint, including, if applicable, details of the steps it intends to take to resolve the issue. If the employee is not satisfied with the outcome of his complaint, he can appeal the decision made by the employer in writing.
Not so long ago, a case was considered, during which it turned out that the employee's complaint had not been properly considered. Svetlana Lokhova filed a sex discrimination lawsuit against her former employer, the London office of one of the largest Russian banks.
Ms. Lokhova won a lawsuit before the Labor Tribunal after the Tribunal heard that her former colleagues called her crazy, cocaine and other hard-hitting nicknames. The Tribunal also acknowledged that Ms Lokhovoy's immediate superior should have been dismissed by the bank for gross violations due to the fact that he made offensive and derogatory comments of a personal nature behind her back.
The Labor Tribunal also found that the head of the London office failed to resolve the internal labor dispute and did not properly investigate Ms Lokhova's complaints. In its judgment, the Tribunal found that the lamentable omission of the head of the London office had harmed the plaintiff and amounted to persecution. The Tribunal considered that the head of the office should have removed Ms Lokhova's immediate superior from work and ensure that appropriate disciplinary action was imposed on him.
The former Cambridge graduate said at the time that she was utterly frustrated and exhausted by the campaign the defendants waged against her, that she had survived six months of bullying at work, and that it deeply affected every aspect of her life.
In well-paid industries such as finance, law or medicine, the amount awarded by the Labor Tribunal in discrimination or whistleblowing cases can be enormous because, unlike unfair dismissal cases, there is no upper limit to compensation. that can be received by the employee.
In the claim for compensation, Ms Lokhova claimed millions of pounds, citing loss of earnings, non-pecuniary damage and damage to health as a result of discrimination as grounds. This case seems to be a case where top management prefers to take the position of an ostrich burying its head in the sand, and this is a fairly common situation. Formally, employers have rules governing the procedure for dealing with employee complaints, however, these rules often gather dust in desk drawers or on a shelf and are not used by managers, who are obliged to use them in pre-trial labor disputes. If Ms Lokhova's complaints were properly addressed by the bank, the bank could avoid criticism from the Labor Tribunal. Another way to protect your rights is to go to court with a claim for unfair dismissal.
Ms Lokhova did not file a complaint about unfair dismissal, but she would have had such an opportunity if she had worked at the bank for at least two years, and if the bank could not prove that the reason for her dismissal was potentially fair and that the bank acted reasonable in all circumstances.
Potentially fair reasons for dismissal include employee behavior, compliance with the job or position, redundancies, violation of the law, or "other substantial reason."
If the employee believes that there was no just reason for the termination and / or that the termination procedure was violated, a claim for unfair termination must be filed with the Labor Tribunal within three months of the date of termination (although additional time will be added for early conciliation procedures conducted by the structure named ACAS).
If the Labor Tribunal concludes that the employee was unfairly dismissed, it can order the employer to reinstate the employee, or provide him with another position comparable to the previous one, or - most often this is what happens - pay the employee monetary compensation.
The level of compensation is determined by the Labor Tribunal, which takes into account any financial losses resulting from layoffs, but up to the statutory maximum level (from April 2015 it is 78,335 pounds) or 52 weeks of employee wages before taxes. This amount may include the employee's loss of earnings while looking for a new job; loss of various benefits and preferences, including retirement; any search costs new job; and any difference in wages and benefits after the employee starts a new job.
Employees with permanent employment overseas may file unfair termination claims in exceptional circumstances, such as if there is a substantive link to UK labor law. However, the circumstances of each case depend on the specific facts.
Noel Deans and Alice Bouquet are Employees of the Labor Dispute Department law firm Bivonas Law (
Once a person's work contract is classified, the courts have specific rules to determine, outside the statutory minimum charter of rights, what the terms are. Similar rules for the inclusion of terms and terms of implication exist as in a regular contract. However, in the Gisda CYF on the Barratts, Lord Kerr stressed that if it affects legal rights, the construction process is one that must be “intellectually segregated” from general contract law, due to an employee dependency relationship. In this case, Ms. Barratt was informed that her occupation had been terminated in a letter that she opened 3 days after his arrival. When, 3 months and 2 days after arrival, she filed an unfair letter of resignation, the employer argued that the deadline had come under which, in a regular contract, one would be bound by notice when a reasonable person would have read the message. Supreme Court held that Ms Barratt had time to file a lawsuit because she was only bound by a notice when she actually read it. With regard to employment, it was different, given the purpose of labor laws to protect the employee. From education to termination, employment contracts must be interpreted in the context of the legal protection of dependent workers.
Every employee has the right on the basis of a written application of their employment contract, which usually include workplace collective agreement, and must follow or be better than the minimum statutory rights.
Working conditions are all that are promised to an employee when work begins, as long as they do not conflict with statutory minimum rights. In addition, terms can be included by reasonable notice, for example by referring to the personnel manual in a written employment agreement or even in a document in the filing cabinet next to the employee benefit. While not expressly stated, they are considered non-binding between the union and the employer, a collective agreement can give rise to individual rights. The test used by the courts is to freely ask whether its terms are “prone” to inclusion, rather than statements of “policy” or “aspiration”. In cases where the words of the collective bargaining agreement are clear, the “last in first” rule was enforced in one case to potentially qualify, but in another case, an article claiming to condemn forced dismissals was considered binding only “in honor”.
In addition to statutory rights, explicitly agreed terms and terms included, the contractual distinction of an employment relationship is a series of standardized implied terms (or terms implied by law) that accompany it. First of all, and in addition to the individualized CONDITIONS that the courts interpret to reflect the reasonable expectations of the parties, the courts have long held that employees owed additional and beneficial obligations, such as a safe work system, [60] and payment of wages, even if the employer does not have work. ... Reflecting more recent priorities, the House of Lords occupying employers is required to inform its employees of its workplace retirement rights, although a lower court has stopped requiring employers to make recommendations regarding workplace disability benefits. The key term implied is the duty of good faith or "mutual trust and confidence." It is a flexible concept that can be applied in a wide variety of circumstances leading to damages or injunctions. Examples include requiring employers not to act in an authoritarian manner, not to name employees behind their backs, not to treat employees unevenly when raising wages, not running a company as a front for international crime, or not being careful to multiply a bonus. There has been disagreement among the justices as to the extent to which the core implies the term mutual trust and trust can be "negotiated", and the House of Lords believes that the parties can, when they are "free" to do so, while others approach the issue as a matter of building an agreement that determines within the exclusive judicial competence.
Second and older distinctive feature an employment contract stipulates that employees are obliged to follow the instructions of their employers while working, unless this is contrary to the law or their agreed terms. Each employment relationship leaves the employer with a discretionary balance, historically expressed as a master-servant relationship. Today, in practice, this leaves the employer the opportunity to change the way of working in accordance with the needs of the business. The courts have allowed this to continue, as long as it does not contradict the urgent terms of the contract, which always require the consent of the employee or the revision of the collective agreement. The status of “flexibility clauses”, suggesting that employers are free to change any contract term at their discretion, is contested as it will often tolerate an abuse of power that controls the common law. The limits of the courts' tolerance to such practices are obvious if they relate to procedures for access to justice or, potentially, if they conflict with the duty of mutual trust and confidence.
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