1.1 Explain The Purpose Of Employment Law
Explain the purpose of employment law and how it is enforced. Choose an area of employment you are familiar with and state whether or not you believe the objectives of this law are met in practice and whether or not its enforcement is effective.
1.1 Explain the aims and objectives of employment regulation
The role of employment law is to achieve social justice and protect employees. There are two distinct branches of law, which include criminal and civil law. Criminal law in concerned with offences against the state and has different court system and procedures to civil law. Civil law is the result of a claimant suing the respondent, usually for compensation. In the context of employment law the claimant refers to an employee or unsuccessful …show more content…
job applicant and the respondent refers to the prospective/former employer. Employment law usually falls within civil law; however there are circumstances when it would be dealt with under criminal law, for example, breach of health and safety or immigration regulations.
Most employment law derives from EU directives and statutes passed by parliament in the form of Acts e.g. the Employee Relations Act 1996, the Employment Act 2002. Regulations such as the Agency Workers Regulations 2011 are issued under the terms of the Act (Taylor & Woodhams 2012). This is referred to as primary legislation.
Secondary legislation includes Codes of Practice, which are implemented to promote good employee relations through providing education and guidance. Failure to adhere to the code of practice would be taken into account at tribunal and a breach could incur a penalty of up to 25% in any compensation awarded. This may be up or down depending on which party is at fault.
The civil court system is hierarchical which enables a losing party to appeal their case to a higher court when there are grounds for arguing that a lower court has either misapplied or misinterpreted the law. Importantly when a higher court e.g. the employment appeal tribunal (EAT), makes a ruling on a point of legal principle, that then becomes a binding precedent which all the lower courts then have to observe when similar cases are subsequently brought before them (CIPD 2012). This is known as common law.
1.2 Describe the role played by the tribunal and courts system in enforcing employment law.
Employment tribunal claims can relate to all the principal employment rights that have been established by statute and the most common include:
• unfair dismissal
• unlawful discrimination
• unauthorised deductions from wages
• redundancy payments
• Working Time Regulations
• equal pay
• National Minimum Wage
• whistleblowing (that is breaches of the Public Interest Disclosure Act)
• family-friendly employment regulations (for example maternity/ paternity leave, right to request flexible working etc.).
(CIPD 2012)
To initiate a claim the claimant must complete an ET1 form and submit it to their employment tribunal. There are strict time limits for bringing a claim; usually three months from the date of the termination of employment or when the act was breached. There are certain circumstances when an extension can be granted and certain claims have a longer time limit, e.g. a redundancy payment claim has six months. The tribunal will send a copy of the ET1 to the respondent, with an ET3 form for completion within 28 days.
There are three main types of hearing as described below by the CIPD Factsheet (2012)
Case management discussion
This is a short hearing to address any issues so that the case can proceed smoothly when it gets to a full hearing. For example, it might identify the areas under contention or papers that need to be produced.
Pre-hearing Review
This is held when there are issues that need to be determined prior to a full hearing. For example, there might be a disagreement over whether or not the claimant was an employee and hence whether or not s/he was entitled to bring the claim.
Full Hearing
This is the full hearing of the case.
A fourth type of hearing, known as an interim relief hearing is rare. It may arise where the principal reason for a dismissal was for a protected reason, for example whistleblowing or because of trade union membership or activities.
An employment tribunal will usually consist of a chair and two lay members, one lay member with experience of industrial relations from an employers’ standpoint and the other from a trade union or employee standpoint. Decisions are by majority so the two lay members can outvote the chairman.
The tribunal decision is called a judgement. The award depends on the type of claim, with compensation and payment of wages or monies due to the employee being most common and reinstatement and re-engagement being rare.
There are arguments for and against the tribunal system; they were introduced to deal with issues in a prompt, inexpensive and informal manner. However, with the number of tribunals increasing each year, it can take years before a case gets heard. The legal representation and time preparing and attending the case makes it costly and stressful. The CIPD encourages the use of alternative dispute resolution, particularly ACAS mediation.
1.3 Explain how cases are settled before and during formal legal procedures.
ACAS produce formal codes of practice and have a role in trying to promote a settlement prior reaching tribunal. Currently, copies of all ET1 and ET3 forms are sent to ACAS who decide which cases seem to them to present the best opportunities for settlement ahead of a full employment tribunal hearing. (CIPD 2012). Conciliation involves an independent conciliator discussing the issues with both parties to gain understanding and reach an agreement, therefore avoiding tribunals.
Other than ACAS conciliation, the only method of settling a tribunal before reaching the hearing stage is by a formal compromise agreement.
Compromise agreements are currently under review by the government and they may be renamed ‘settlement agreements’. For a compromise agreement to be valid it must met certain conditions from the ERA section 203.
You are asked to develop a training session for line managers with the title ‘managing recruitment, selection and appointments lawfully’. Outline what you would include in your presentation and why. Briefly set out three examples you would use to illustrate your key points.
In planning a training session for line managers, I would include the information set out below, to ensure managers have a clear understanding of the importance of conducting the recruitment process lawfully, by avoiding discrimination and the consequences of unlawful discrimination.
2.1 Identify the main principles of discrimination law in recruitment and selection and in …show more content…
employment.
The main piece of legislations that governs the discrimination law is the Equality Act 2010. This act consolidates nine separate pieces of anti-discrimination legislation into a single act (CIPD, 2012).
The Equality Act 2010 sets out nine ‘protected characteristics’, which were covered by previous anti-discrimination law strands. The purpose of the Act is to protect people with a protected characteristic, the nine strands include:
• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation
(CIPD, 2012)
The Act introduced the following key concepts.
Direct Discrimination
This occurs on when a person with a protected characteristic is treated less favourably.
Indirect Discrimination
Indirect discrimination can occur when a provision, criterion or practice (PCP) applies to everybody but has a disproportionate impact or disadvantage on people with a protected characteristic and/or it is not a proportionate means of achieving a legitimate aim. An example of indirect discrimination specific to the recruitment process could include imposing a requirement for a minimum of five years’ experience for a particular job. This would indirectly discriminate on the basis of age, as younger applicants would be at a disadvantage.
Associative Discrimination
A form of direct discrimination against a person because they have an association with someone with a particular protected characteristic, for example, a non-disabled employee who is discriminated against because of action she needs to take to care for a disabled dependant (CIPD, 2012).
Perceptive Discrimination
Another form of direct discrimination, perceptive discrimination occurs when the discriminator thinks the person possesses the characteristic, regardless of whether they actually do. For example, discrimination based on the fact that a male candidate is perceived to be homosexual by the recruiter would be unlawful, regardless of whether the candidate was actually homosexual or not. The Equality Act 2010 protects against perceptive discrimination against age, race, religion or belief, sexual orientation, disability, gender reassignment and sex.
Harassment
The CIPD (2012) define harassment as: ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual '. Harassment can apply to employees even if they do not possess the protected characteristic and in circumstances when the harassment is not directed at them.
Third Party Harassment
Employers can be liable for harassment toward their staff by non-employees, for example, customers.
The harassment must have happened on at least two occasions, the employer is aware and does not take reasonable steps to prevent it. This part of the Act is under review from the government as there are concerns that it is an unworkable concept.
Victimisation
This occurs when an employee is treated less favourably because they have made or supported a complaint related to the Act, or they are suspected of doing so.
Positive Discrimination
Positive discrimination aims at removing barriers that could prevent a person or group of people from being employed or progressing within an organisation. It allows employers to appoint a candidate from an under-represented minority where two candidates are equally qualified. ACAS provide an example of this in practice at Loughton on Sea High School. The census report show that 15% of the local population were from minority ethic groups, however none of the existing managers were from ethnic minority groups. Following a recruitment process where candidates were scored against a range of criteria, two candidates scored equally. One candidate was black and the school used the provision within the equality act to appoint an unrepresented minority (ACAS,
2011)
Recruitment advertisements must not indicate that an individual or group are discouraged from applying on the basis of a protected characteristic.
Exceptions to the above are when it is identified that there is a genuine occupational qualification (GOQ) or requirement, e.g. when a job requires a particular sex to preserve decency or privacy. However, GOQ will not provide a defense if the employer could reorganise the work amongst existing employees. This is evident in the Etam plc v Rowan case. It was found unreasonable not to reorganise duties amongst existing staff so that the male candidate did not have to do fitting room duties.
The recruitment process should be planned and structured so that each candidate is asked and scored against the same set of questions, based on the requirements of the job.
Except in very restricted circumstances it is unlawful to ask questions, either verbally or written, relating to health or disability during the recruitment process. Information regarding disability can be collated for monitoring purposes on a separate document and not given to the interview panel. A guaranteed interview scheme would allow employers for information on disability; however it must be made clear that it is being asked for this reason.
2.2 Explain how contracts of employment are established.
A contact of employment is formed where an employer makes an offer of work and the employee accepts the offer in exchange for consideration, usually money (CIPD, 2012). A contract can be written or verbal, but an employer is required to provide a written statement of particulars within two months of the employment commencement date.
Express Terms
Express terms are binding terms that are expressly stated to form part of the contract and normally take precedents over other terms, including custom and practice. Express terms include the written contract and other documents such as the staff handbook.
Implied terms
The CIPD (2012) state to avoid uncertainty or dispute it is advisable that as many terms as possible are set out in writing, and are issued to the employee prior to, or upon, commencement of employment. However, some terms are implied into contracts because they are incorporated by statute, incorporated by collective or workforce agreements or incorporated by custom and practice over a period of time. The CIPD provide the following examples:
• a duty of mutual trust and confidence between the employer and employee
• the employer’s duty to pay wages
• the employer’s duty to provide a safe system of work and safe workplace
• the right to receive at least the national minimum wage (implied by statute)
• the right to a minimum period of notice (implied by statute)
• equality relating to men and women’s pay (implied by statute).
Custom & Practice
Custom and practice is now relied on far less because contracts are more common and a statement of written particulars is required by statute. However, custom and practice may still be invoked to fill in gaps where the contract is not explicit. Custom or practice must be definite, reasonable and generally applied in the area or trade in question.
Prior to written statements of particulars being required by statute, Custom and practice was relied on to identify contractual terms
It is important to identify from the outset whether a contract of service (employment) or a contract for service (subcontract/freelance) is appropriate. There are a number of tests that can be used:
• mutuality of obligation
• control - does the employer control how the worker does the work, and do the employer’s disciplinary procedures apply to the worker?
• integration into the organisation?
• multiple including 'substitution '.
(CIPD, 2012)
Question 3: Know how to manage change and reorganisation lawfully
Your organisation is planning a major re-oganisation that will involve moving some people to other sites and the outsourcing of a major function to a sub-contractor. You are asked to set out the major ways in which the law protects employees in such situations and to advise managers about carrying out the re-oganisations lawfully. What would you say and why?
3.1 When and how contracts can be changed lawfully
There are certain circumstances where a contract of employment can be changed lawfully. In all circumstances the process should be treated cautiously as the change may be considered a breach of contract, resulting in an employee resigning and claiming constructive dismissal.
The CIPD (2012) describes the three main options for altering an existing employees contract.
1. Agree the change following consultation
A small incentive may be offered to encourage acceptance, and changes should then be implemented within reasonable timescales.
2. Make any changes unilaterally
This is considered risky, even when a business need to impose the change has been identified and communicated.
If an employee continues to work without objection, this cannot automatically be taken as their acceptance, if the new terms do not affect them at the time of imposing the change.
3. Terminate the employee’s contract by notice and offer them re-engagement on new terms and conditions. An employer may consider this option where changes cannot be agreed and where it appears too risky to impose the changes unilaterally. The employer must then offer re-engagement on the new terms immediately. This may be considered in law to be a redundancy dismissal, therefore any rules around collective redundancy and consultation time limits should be observed.
2.2 Explain the main requirements of redundancy law.
Redundancy is governed by various legislation including the Employment Rights Act 1996 and case law. According to 139(1) ERA 1996, employees are regarded as being redundant if their dismissals are attributable wholly or mainly to:
• a cessation of business
• a cessation of business at the employee’s site
• a reduction or cessation of work.
(CIPD, 2012)
The CIPD identify the stages below, which should be planned and implemented during a redundancy situation.
Planning
At this stage everything should be considered to avoid a redundancy situation including, natural wastage, recruitment freezes, stopping or reducing overtime, seeking volunteers, retraining/redeployment, pay freeze, short-time working, pay cuts in return for time off work.
Identifying the pool for selection
If the pool is not carefully and properly identified the dismissal will be unfair.
Seeking volunteers
By considering a voluntary redundancy package and seeking volunteers the need for compulsory redundancies may be avoided.
Consultation
The collective consultation period for 100 or more employees will change from 90 to 45 days in April 2013. For 20-99 employees the period of consultation will remain at 30 minimum days before notification of redundancy. For consultation to be effective it must be a two way process with employees encouraged to give feedback and ideas, which are carefully considered.
Selection
Selection must be carried out on objective criteria and may include:
• Length of service *
• Attendance records
• Disciplinary records
• Skills, competencies and qualifications
• Work experience
• Performance records
*Length of service should only be considered as one of a number of factors as younger employees are likely to have less service.
Tribunals look favourably on selection procedures based on a points system, which scores each employee against the relevant criteria (CIPD, 2012).
Appeals and dismissals
Employees who are identified as ‘at risk’ should be notified in writing and invited to attend a formal meeting, which is the first part of the individual consultation. This should be followed by at least one more formal consultation.
Following the individual consultation and all suggestions/arguments that the employee has put forward have been carefully considered, a decision should be made and provided in writing to the employee, allowing them the right of appeal against the decision.
In a very small number of cases there is a possible defence where an employer may act reasonably, even though no consultation was carried out. The case of Ashby v JJB Sports plc was held as fair by the EAT even though there was no consultation held. The judgement stated that consultation would have been futile because the claimant would not have been suitable for the senior position, offered to an external candidate. The CIPD state that lack of consultation will rarely be justified and as a matter of best practice, employers should not take that risk.
Redundancies are automatically unfair if they are for the following reasons:
• trade union membership (or non-membership)
• part-time status
• pregnancy or maternity-related reasons
(CIPD, 2012)
Suitable alternative employment
Employers should try to identify suitable alternative work throughout the organisation and if offered there is no right to statutory redundancy payment if this is subsequently refused. There is a statutory trial period of four weeks in the new role, during which the employee retains their right to redundancy payment.
Redundancy payment
Two years’ service is a requirement for the minimum redundancy entitlement. There is an online calculator that can provide the statutory redundancy amount and also provides the following information:
For each year of service an employee gets:
0.5 week’s pay up to 22nd birthday
1 week’s pay after 22nd birthday
1.5 weeks’ pay after 41st birthday
Length of service is capped at 20 years and weekly pay at £450. The maximum amount of statutory redundancy pay is £13,500
Counseling and support
Employees should be supported through the redundancy process, with managers properly trained in how to deal with redundancies, including offering CV writing and interview skills workshops.
3.3 Explain the main requirements of the law on business transfers
In accordance with the Transfer of Undertakings Protection for Employees Act regulations 2006 employees rights contained within their contract including their continuous service are protected.
The transferor (outgoing business) has a duty to consult with their employees as early as possible, providing the information below:
• that a transfer is to take place
• the reason for the transfer and when it is expected to take place
• the implications for the employees
• the measures that the employer expects to take in relation to the employees
• the measures that the new employer expects to take in relation to the employees.
The transferor must also provide written information regarding the employees who are going to transfer including identity, age, and their rights contained within their written particulars. If this information is not provided or not accurate, the transferee can claim compensation.
The four stages in the HR Change Management Process are set out below:
1. Mobilization
2. Transition
3. Steady State
4. Transformation
Dismissals for reasons connected with the transfer are automatically unfair. Only in circumstances where the employer can demonstrate an ‘economical, technical or organisational (ETO) reason entailing a change in the work will the dismissal not be automatically unfair.
Word count: 3272
Bibliography
ACAS. Conciliation. unknown. http://www.acas.org.uk/index.aspx?articleid=1697 (accessed February 13, 2013).
—. "The Equality Act: What 's new for employers." ACAS. January 2011. http://www.acas.org.uk/CHttpHandler.ashx?id=2833&p=0 (accessed February 13, 2013).
CIPD. Case Reports: Ashby v JJB Sports. December 19, 2012. http://www.cipd.co.uk/hr-resources/case-reports/ashby-v-jjb-sports.aspx (accessed February 13, 2013).
—. Employment Law FAQ. January 2013, 2013. http://www.cipd.co.uk/hr-resources/employment-law-faqs/tribunal-compromise-agreement-definition.aspx (accessed February 13, 2013).
—. "Factsheet on Employment Law: the Court System." CIPD. January 2012. http://www.cipd.co.uk/hr-resources/factsheets/employment-law-court-system.aspx#link_0 (accessed February 13, 2013).
—. "Factsheet on Employment Tribunals." CIPD. January 2013. http://www.cipd.co.uk/hr-resources/factsheets/employment-tribunals.aspx (accessed February 13, 2013).
—. "Factsheet: Contracts of Employment." CIPD. October 2012. http://www.cipd.co.uk/hr-resources/factsheets/contracts-of-employment.aspx (accessed February 13, 2013).
—. "Factsheet: Redundancy." CIPD. March 2012. http://www.cipd.co.uk/hr-resources/factsheets/redundancy.aspx (accessed February 13, 2013).
Commission, Equality & Human Rights. "Your rights to equality at work: when you apply for a job." Equality & Human Rights. July 2011. http://www.equalityhumanrights.com/uploaded_files/EqualityAct/employees_applying_for_a_job.pdf (accessed February 13, 2013).
gov.uk. gov.uk. February 08, 2013. https://www.gov.uk/calculate-employee-redundancy-pay/y/2013-03-01/31/3/500.0 (accessed February 2013, 2013).
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Lewis, David, and Malcolm Sargeant. Essentials of Employment Law. London: CIPD, 2009.
Taylor, Stephen, and Carol Woodhams. Managing People & Organisations. London: CIPD, 2012.
1.1 Explain the aims and objectives of employment regulation
The role of employment law is to achieve social justice and protect employees. There are two distinct branches of law, which include criminal and civil law. Criminal law in concerned with offences against the state and has different court system and procedures to civil law. Civil law is the result of a claimant suing the respondent, usually for compensation. In the context of employment law the claimant refers to an employee or unsuccessful …show more content…
job applicant and the respondent refers to the prospective/former employer. Employment law usually falls within civil law; however there are circumstances when it would be dealt with under criminal law, for example, breach of health and safety or immigration regulations.
Most employment law derives from EU directives and statutes passed by parliament in the form of Acts e.g. the Employee Relations Act 1996, the Employment Act 2002. Regulations such as the Agency Workers Regulations 2011 are issued under the terms of the Act (Taylor & Woodhams 2012). This is referred to as primary legislation.
Secondary legislation includes Codes of Practice, which are implemented to promote good employee relations through providing education and guidance. Failure to adhere to the code of practice would be taken into account at tribunal and a breach could incur a penalty of up to 25% in any compensation awarded. This may be up or down depending on which party is at fault.
The civil court system is hierarchical which enables a losing party to appeal their case to a higher court when there are grounds for arguing that a lower court has either misapplied or misinterpreted the law. Importantly when a higher court e.g. the employment appeal tribunal (EAT), makes a ruling on a point of legal principle, that then becomes a binding precedent which all the lower courts then have to observe when similar cases are subsequently brought before them (CIPD 2012). This is known as common law.
1.2 Describe the role played by the tribunal and courts system in enforcing employment law.
Employment tribunal claims can relate to all the principal employment rights that have been established by statute and the most common include:
• unfair dismissal
• unlawful discrimination
• unauthorised deductions from wages
• redundancy payments
• Working Time Regulations
• equal pay
• National Minimum Wage
• whistleblowing (that is breaches of the Public Interest Disclosure Act)
• family-friendly employment regulations (for example maternity/ paternity leave, right to request flexible working etc.).
(CIPD 2012)
To initiate a claim the claimant must complete an ET1 form and submit it to their employment tribunal. There are strict time limits for bringing a claim; usually three months from the date of the termination of employment or when the act was breached. There are certain circumstances when an extension can be granted and certain claims have a longer time limit, e.g. a redundancy payment claim has six months. The tribunal will send a copy of the ET1 to the respondent, with an ET3 form for completion within 28 days.
There are three main types of hearing as described below by the CIPD Factsheet (2012)
Case management discussion
This is a short hearing to address any issues so that the case can proceed smoothly when it gets to a full hearing. For example, it might identify the areas under contention or papers that need to be produced.
Pre-hearing Review
This is held when there are issues that need to be determined prior to a full hearing. For example, there might be a disagreement over whether or not the claimant was an employee and hence whether or not s/he was entitled to bring the claim.
Full Hearing
This is the full hearing of the case.
A fourth type of hearing, known as an interim relief hearing is rare. It may arise where the principal reason for a dismissal was for a protected reason, for example whistleblowing or because of trade union membership or activities.
An employment tribunal will usually consist of a chair and two lay members, one lay member with experience of industrial relations from an employers’ standpoint and the other from a trade union or employee standpoint. Decisions are by majority so the two lay members can outvote the chairman.
The tribunal decision is called a judgement. The award depends on the type of claim, with compensation and payment of wages or monies due to the employee being most common and reinstatement and re-engagement being rare.
There are arguments for and against the tribunal system; they were introduced to deal with issues in a prompt, inexpensive and informal manner. However, with the number of tribunals increasing each year, it can take years before a case gets heard. The legal representation and time preparing and attending the case makes it costly and stressful. The CIPD encourages the use of alternative dispute resolution, particularly ACAS mediation.
1.3 Explain how cases are settled before and during formal legal procedures.
ACAS produce formal codes of practice and have a role in trying to promote a settlement prior reaching tribunal. Currently, copies of all ET1 and ET3 forms are sent to ACAS who decide which cases seem to them to present the best opportunities for settlement ahead of a full employment tribunal hearing. (CIPD 2012). Conciliation involves an independent conciliator discussing the issues with both parties to gain understanding and reach an agreement, therefore avoiding tribunals.
Other than ACAS conciliation, the only method of settling a tribunal before reaching the hearing stage is by a formal compromise agreement.
Compromise agreements are currently under review by the government and they may be renamed ‘settlement agreements’. For a compromise agreement to be valid it must met certain conditions from the ERA section 203.
You are asked to develop a training session for line managers with the title ‘managing recruitment, selection and appointments lawfully’. Outline what you would include in your presentation and why. Briefly set out three examples you would use to illustrate your key points.
In planning a training session for line managers, I would include the information set out below, to ensure managers have a clear understanding of the importance of conducting the recruitment process lawfully, by avoiding discrimination and the consequences of unlawful discrimination.
2.1 Identify the main principles of discrimination law in recruitment and selection and in …show more content…
employment.
The main piece of legislations that governs the discrimination law is the Equality Act 2010. This act consolidates nine separate pieces of anti-discrimination legislation into a single act (CIPD, 2012).
The Equality Act 2010 sets out nine ‘protected characteristics’, which were covered by previous anti-discrimination law strands. The purpose of the Act is to protect people with a protected characteristic, the nine strands include:
• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation
(CIPD, 2012)
The Act introduced the following key concepts.
Direct Discrimination
This occurs on when a person with a protected characteristic is treated less favourably.
Indirect Discrimination
Indirect discrimination can occur when a provision, criterion or practice (PCP) applies to everybody but has a disproportionate impact or disadvantage on people with a protected characteristic and/or it is not a proportionate means of achieving a legitimate aim. An example of indirect discrimination specific to the recruitment process could include imposing a requirement for a minimum of five years’ experience for a particular job. This would indirectly discriminate on the basis of age, as younger applicants would be at a disadvantage.
Associative Discrimination
A form of direct discrimination against a person because they have an association with someone with a particular protected characteristic, for example, a non-disabled employee who is discriminated against because of action she needs to take to care for a disabled dependant (CIPD, 2012).
Perceptive Discrimination
Another form of direct discrimination, perceptive discrimination occurs when the discriminator thinks the person possesses the characteristic, regardless of whether they actually do. For example, discrimination based on the fact that a male candidate is perceived to be homosexual by the recruiter would be unlawful, regardless of whether the candidate was actually homosexual or not. The Equality Act 2010 protects against perceptive discrimination against age, race, religion or belief, sexual orientation, disability, gender reassignment and sex.
Harassment
The CIPD (2012) define harassment as: ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual '. Harassment can apply to employees even if they do not possess the protected characteristic and in circumstances when the harassment is not directed at them.
Third Party Harassment
Employers can be liable for harassment toward their staff by non-employees, for example, customers.
The harassment must have happened on at least two occasions, the employer is aware and does not take reasonable steps to prevent it. This part of the Act is under review from the government as there are concerns that it is an unworkable concept.
Victimisation
This occurs when an employee is treated less favourably because they have made or supported a complaint related to the Act, or they are suspected of doing so.
Positive Discrimination
Positive discrimination aims at removing barriers that could prevent a person or group of people from being employed or progressing within an organisation. It allows employers to appoint a candidate from an under-represented minority where two candidates are equally qualified. ACAS provide an example of this in practice at Loughton on Sea High School. The census report show that 15% of the local population were from minority ethic groups, however none of the existing managers were from ethnic minority groups. Following a recruitment process where candidates were scored against a range of criteria, two candidates scored equally. One candidate was black and the school used the provision within the equality act to appoint an unrepresented minority (ACAS,
2011)
Recruitment advertisements must not indicate that an individual or group are discouraged from applying on the basis of a protected characteristic.
Exceptions to the above are when it is identified that there is a genuine occupational qualification (GOQ) or requirement, e.g. when a job requires a particular sex to preserve decency or privacy. However, GOQ will not provide a defense if the employer could reorganise the work amongst existing employees. This is evident in the Etam plc v Rowan case. It was found unreasonable not to reorganise duties amongst existing staff so that the male candidate did not have to do fitting room duties.
The recruitment process should be planned and structured so that each candidate is asked and scored against the same set of questions, based on the requirements of the job.
Except in very restricted circumstances it is unlawful to ask questions, either verbally or written, relating to health or disability during the recruitment process. Information regarding disability can be collated for monitoring purposes on a separate document and not given to the interview panel. A guaranteed interview scheme would allow employers for information on disability; however it must be made clear that it is being asked for this reason.
2.2 Explain how contracts of employment are established.
A contact of employment is formed where an employer makes an offer of work and the employee accepts the offer in exchange for consideration, usually money (CIPD, 2012). A contract can be written or verbal, but an employer is required to provide a written statement of particulars within two months of the employment commencement date.
Express Terms
Express terms are binding terms that are expressly stated to form part of the contract and normally take precedents over other terms, including custom and practice. Express terms include the written contract and other documents such as the staff handbook.
Implied terms
The CIPD (2012) state to avoid uncertainty or dispute it is advisable that as many terms as possible are set out in writing, and are issued to the employee prior to, or upon, commencement of employment. However, some terms are implied into contracts because they are incorporated by statute, incorporated by collective or workforce agreements or incorporated by custom and practice over a period of time. The CIPD provide the following examples:
• a duty of mutual trust and confidence between the employer and employee
• the employer’s duty to pay wages
• the employer’s duty to provide a safe system of work and safe workplace
• the right to receive at least the national minimum wage (implied by statute)
• the right to a minimum period of notice (implied by statute)
• equality relating to men and women’s pay (implied by statute).
Custom & Practice
Custom and practice is now relied on far less because contracts are more common and a statement of written particulars is required by statute. However, custom and practice may still be invoked to fill in gaps where the contract is not explicit. Custom or practice must be definite, reasonable and generally applied in the area or trade in question.
Prior to written statements of particulars being required by statute, Custom and practice was relied on to identify contractual terms
It is important to identify from the outset whether a contract of service (employment) or a contract for service (subcontract/freelance) is appropriate. There are a number of tests that can be used:
• mutuality of obligation
• control - does the employer control how the worker does the work, and do the employer’s disciplinary procedures apply to the worker?
• integration into the organisation?
• multiple including 'substitution '.
(CIPD, 2012)
Question 3: Know how to manage change and reorganisation lawfully
Your organisation is planning a major re-oganisation that will involve moving some people to other sites and the outsourcing of a major function to a sub-contractor. You are asked to set out the major ways in which the law protects employees in such situations and to advise managers about carrying out the re-oganisations lawfully. What would you say and why?
3.1 When and how contracts can be changed lawfully
There are certain circumstances where a contract of employment can be changed lawfully. In all circumstances the process should be treated cautiously as the change may be considered a breach of contract, resulting in an employee resigning and claiming constructive dismissal.
The CIPD (2012) describes the three main options for altering an existing employees contract.
1. Agree the change following consultation
A small incentive may be offered to encourage acceptance, and changes should then be implemented within reasonable timescales.
2. Make any changes unilaterally
This is considered risky, even when a business need to impose the change has been identified and communicated.
If an employee continues to work without objection, this cannot automatically be taken as their acceptance, if the new terms do not affect them at the time of imposing the change.
3. Terminate the employee’s contract by notice and offer them re-engagement on new terms and conditions. An employer may consider this option where changes cannot be agreed and where it appears too risky to impose the changes unilaterally. The employer must then offer re-engagement on the new terms immediately. This may be considered in law to be a redundancy dismissal, therefore any rules around collective redundancy and consultation time limits should be observed.
2.2 Explain the main requirements of redundancy law.
Redundancy is governed by various legislation including the Employment Rights Act 1996 and case law. According to 139(1) ERA 1996, employees are regarded as being redundant if their dismissals are attributable wholly or mainly to:
• a cessation of business
• a cessation of business at the employee’s site
• a reduction or cessation of work.
(CIPD, 2012)
The CIPD identify the stages below, which should be planned and implemented during a redundancy situation.
Planning
At this stage everything should be considered to avoid a redundancy situation including, natural wastage, recruitment freezes, stopping or reducing overtime, seeking volunteers, retraining/redeployment, pay freeze, short-time working, pay cuts in return for time off work.
Identifying the pool for selection
If the pool is not carefully and properly identified the dismissal will be unfair.
Seeking volunteers
By considering a voluntary redundancy package and seeking volunteers the need for compulsory redundancies may be avoided.
Consultation
The collective consultation period for 100 or more employees will change from 90 to 45 days in April 2013. For 20-99 employees the period of consultation will remain at 30 minimum days before notification of redundancy. For consultation to be effective it must be a two way process with employees encouraged to give feedback and ideas, which are carefully considered.
Selection
Selection must be carried out on objective criteria and may include:
• Length of service *
• Attendance records
• Disciplinary records
• Skills, competencies and qualifications
• Work experience
• Performance records
*Length of service should only be considered as one of a number of factors as younger employees are likely to have less service.
Tribunals look favourably on selection procedures based on a points system, which scores each employee against the relevant criteria (CIPD, 2012).
Appeals and dismissals
Employees who are identified as ‘at risk’ should be notified in writing and invited to attend a formal meeting, which is the first part of the individual consultation. This should be followed by at least one more formal consultation.
Following the individual consultation and all suggestions/arguments that the employee has put forward have been carefully considered, a decision should be made and provided in writing to the employee, allowing them the right of appeal against the decision.
In a very small number of cases there is a possible defence where an employer may act reasonably, even though no consultation was carried out. The case of Ashby v JJB Sports plc was held as fair by the EAT even though there was no consultation held. The judgement stated that consultation would have been futile because the claimant would not have been suitable for the senior position, offered to an external candidate. The CIPD state that lack of consultation will rarely be justified and as a matter of best practice, employers should not take that risk.
Redundancies are automatically unfair if they are for the following reasons:
• trade union membership (or non-membership)
• part-time status
• pregnancy or maternity-related reasons
(CIPD, 2012)
Suitable alternative employment
Employers should try to identify suitable alternative work throughout the organisation and if offered there is no right to statutory redundancy payment if this is subsequently refused. There is a statutory trial period of four weeks in the new role, during which the employee retains their right to redundancy payment.
Redundancy payment
Two years’ service is a requirement for the minimum redundancy entitlement. There is an online calculator that can provide the statutory redundancy amount and also provides the following information:
For each year of service an employee gets:
0.5 week’s pay up to 22nd birthday
1 week’s pay after 22nd birthday
1.5 weeks’ pay after 41st birthday
Length of service is capped at 20 years and weekly pay at £450. The maximum amount of statutory redundancy pay is £13,500
Counseling and support
Employees should be supported through the redundancy process, with managers properly trained in how to deal with redundancies, including offering CV writing and interview skills workshops.
3.3 Explain the main requirements of the law on business transfers
In accordance with the Transfer of Undertakings Protection for Employees Act regulations 2006 employees rights contained within their contract including their continuous service are protected.
The transferor (outgoing business) has a duty to consult with their employees as early as possible, providing the information below:
• that a transfer is to take place
• the reason for the transfer and when it is expected to take place
• the implications for the employees
• the measures that the employer expects to take in relation to the employees
• the measures that the new employer expects to take in relation to the employees.
The transferor must also provide written information regarding the employees who are going to transfer including identity, age, and their rights contained within their written particulars. If this information is not provided or not accurate, the transferee can claim compensation.
The four stages in the HR Change Management Process are set out below:
1. Mobilization
2. Transition
3. Steady State
4. Transformation
Dismissals for reasons connected with the transfer are automatically unfair. Only in circumstances where the employer can demonstrate an ‘economical, technical or organisational (ETO) reason entailing a change in the work will the dismissal not be automatically unfair.
Word count: 3272
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