Employment Law Notes
Employment Law
Employment Law is about the legal relationship between an employer and an employee. It is based on the contract of employment. It protects both the employer and the employee.
The laws on employment come from:
• Statutes passed by the UK Parliament, such as the Employment Act 1990 and the equal pay Act 1970;
• European Community in the form of regulations and directives.
• Common Law, which is based on normal practice and includes things like the employers duty to pay wages or the employee’s duty to obey lawful orders
A ‘statutory right’ means a right which is based on the act of parliament.
Employment law covers all aspects of employment- from job adverts and interviews to dismissal and redundancy or retirement.
Adverts and Job Interviews
Job adverts and interviews have to comply with the Equality Act 2010 which has now consolidated and replaced previous legislation such as: Sex Discrimination Act 1975 (amended 1986 & 2001), Disability Discrimination Act 1995 and the Race Relation Act 1976(amended 2000). The Law provides for equal treatment in access to employment as well as private and public services. In other words, adverts for jobs should not discriminate against people because of their sex or race. For example it would be illegal to advertise for a ‘male forester’ or a ‘woman cleaner’. Nor could an advert ask for a ‘Scottish Manager’.
The exceptions to this law are exemplified below:
➢ In some circumstances it is possible to state that being of a particular sex, race, religion/belief, age or sexual orientation is a genuine occupational qualification or requirement for the job.
Therefore, it may be possible to state that being:
▪ of Italian origin is a requirement for a job as a waiter an Italian restaurant so that the restaurant has an "authentic" Italian atmosphere ▪ a man is a qualification for a job as an attendant in a men's public lavatory as some men might object to having a female attendant around while they use the facilities ▪ a Christian is necessary for a job with Christian charity ▪ heterosexual is a requirement for a job with a religious organisation because the religion's believers object to homosexual practices ▪ Over 50yrs is a requirement for a job as an actor playing the part of someone who is retired. ➢ Jobs in private households- but only if the work involves intimate physical contact- so it would be alright to advertise for a ‘live in female companion’ but not for a ‘male gardener’.
By virtue of the Equality Act 2010, it is now unlawful for an employer to impose an age limit when recruiting, unless this age restriction can be objectively justified or is imposed by law. Note that it is not unlawful to ask for ages on application forms. However, care should be taken to ensure that obtaining this information does not lead to unjustified discrimination. It might be better if such questions are saved for a diversity monitoring form that can be separated from the main application.
As with adverts it is also important that interviews are not discriminatory. This covers not only the exact words used, but also attitudes to and treatment of applicants.
Secretary of state for Scotland v Miss Henley
It could also be considered illegal to ask certain questions only of particular candidates. For example it would be discriminatory to ask female candidates if they have children and what they would do if their children were ill during work time and not to ask this question of male candidates.
Employee’s Eligibility
Some people are automatically entitled to work in the UK. Others may have restrictions on how long they can stay, whether they can work or the type of work they can do.
Under the Asylum & Immigration Act 1996, all employers in the UK have a responsibility to prevent illegal migrant working. They must therefore check the entitlement of everyone they plan to employ to work in the UK.
If an employer fails to do this, they may be liable to pay a civil penalty. If they knowingly employ an illegal migrant worker, they may face criminal prosecution, which could result in an unlimited fine and/or a maximum two-year prison sentence.
Contract of Employment
Once a person has been selected for a job, the next stage is to enter into a legally binding contract with that person. As with any contract, this involves: An offer and an acceptance of that offer, and it is also a requirement that the agreement is not illegal for example to defraud tax. The legal foundation of the contract of employment is common law which governs all other types of contract. The contract is legally binding and may be given in either a written form or verbally through interviews, discussions or telephone conversations.
Even if a written contract is not issued, the employer is under a legal duty to provide most employees with a written statement of their main employment particulars within two months of the start of their employment.
The written statement is not itself the contract but it can provide evidence of the terms and conditions of employment between the employer and the employee if there is a dispute later on.
The Written Statement
The Employment Rights Act 1996 and subsequently the Employment Act 2002 lays down conditions regarding the provision of a written statement of the terms and conditions of employment.
All employees, regardless of the number of hours they work per week, are entitled to receive a written statement from their employer, within two months of starting work. The statement describes the main terms of the contract of employment.
The written statement must contain:
• The name of the employer and the employee
• Date when the employment commenced
• Job title
• Hours worked
• Terms of Holiday and holiday pay
• Details of notice and termination
• Sickness or injury provisions
• Pension arrangement.
It is important to note that some terms and conditions of employment for people employed in the agriculture are governed by the Agricultural Wages Boards. This Board was set up under the Agricultural Wages Act (Scotland) 1949. The Board fixes minimum rates of wages and holidays and other terms and conditions of employment for certain categories of employees working within the agricultural industry.
Discrimination
The Equality Act 2010 which consolidates and replaces the plethora of Acts and regulations that formed the anti discrimination laws (i.e : Sex Discrimination Act 1975, Equal Pay Act 1970, Race Relation Act 1976,Disabilty Discrimination Act 1995) protects people from unfair treatment at work because of their characteristics.
The Act is intended to simplify the law by bringing together all the existing anti discrimination legislation.
It is unlawful to discriminate against a person at work because of their:-
• sex • race • disability • colour • nationality • ethnic or national origin • gender reassignment • marriage and civil partnership • religion or belief • sexual orientation • age.
It is also unlawful to discriminate against a person on grounds of their past criminal record. See Rehabilitation of Offenders Act 1974.
Discrimination can be either direct or indirect.
Direct discrimination : According to S. 13 of the Equality Act 2010 occurs when a person is treated less favourably at work because of their sex, race, religion, age, sexuality , disability etc. For example, if an Asian employee is not selected for promotion because of his race, this is direct race discrimination.
Grieg v Community Industry
Indirect discrimination : By virtue of S. 19 of the Equality Act 2010 is the application of a provision, criterion or practice to everyone which has a disproportionate effect on some people and is not objectively justified. For example, a requirement that applicants for a job be over a certain height would have a greater impact on women than on men, as the average height of women is lower than that of men. Or if the employer only gives training to full-time workers, this would indirectly discriminate against women, as most part-time workers are women.
Price v Civil Service
Harassment : This is also a form of discrimination. S.26 Of the Equality Act 2010 explains harassment as where a person is subjected to unwanted conduct related to a relevant protected characteristics and the conduct has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the other. It is also harassment if a person treats another less favourably because the other has rejected or submitted to unwanted conduct of a sexual nature. Harassment can include verbal abuse, suggestive remarks and unwanted physical contact.
Victimisation: According to S.27 of the Equality Act 2010, you may also be discriminated against if you are victimised because you have tried to take action about discrimination. Victimisation is subjecting a person to a further detriment after they try to complain or bring proceedings in connection with discrimination on their own behalf or on behalf of someone else.
Strathclyde RC v Porcelli
The Equality Act 2010 also protects people who have a mental or physical disability from being discriminated against by employers. The Act says that people who have a disability cannot be refused employment or dismissed against at work purely because of their disability as long as it does not affect their ability to do a job.
Therefore it is against the law for an employer:
• to discriminate directly against you if you are disabled or because you are associated with someone who is disabled, for example, your partner or child • to treat you less favourably because of your disability - including recruitment and selection, terms and conditions, dismissal and redundancy (but see below). • not to make 'reasonable adjustments' to the workplace to enable you to work or to continue to work (see below) • to harass you if you are disabled, for example, by making jokes about your disability • to victimise you if you take legal action because of discrimination against you, or if you help someone else to take legal action because of discrimination.
Employers can treat disabled people less favourably only if they have a sufficiently justifiable reason for doing so, and only if the problem cannot be overcome by making 'reasonable adjustments'. For example, an employer would be justified in rejecting someone with severe back pain for a job as a carpet fitter, as they cannot carry out the essential requirements of the job.
Examples of the types of adjustments that an employer might make include: special equipment to help you do your job; transferring you to a different post or work place; altering making physical adjustments to the premises; supplying your hours of work or giving you extra time off.
The employment areas covered by the legislations with regards to discrimination as a whole include: • advertising • recruitment • selection • promotion • transfer • training • redundancy • dismissal • retirement
The Law also provides that employees who do similar jobs at the same workplace for the same employer must get the same pay and terms of employment. Before this Act it was common for women to be paid less than men for the same job and the main reason for the law was to remove this kind of sex discrimination.
Itemised Pay Statements
Employment Rights Act 1996 states that every employee has the right to be given by their employer, at or before the time at which the payment of wages or salary is made a written itemised pay statement. An itemised pay statement must contain the following: • the gross amount of the wages or salary before deductions • the amounts of - and reasons for - any fixed deductions, eg trade union subscriptions, or the total figure for fixed deductions, when a separate standing statement of the details has been provided • the amounts of - and reasons for - any variable deductions • the net amount of wages or salary payable after deductions • a breakdown of each part-payment - such as part by cheque, part in cash
This right to receive an itemised payment does not apply to:
• people who are non-employees, eg freelancers and contractors • certain other groups, including police and some people who work at sea
An employee may complain to an employment tribunal if the employer has failed to give them any kind of pay statement; or has not included all the required details in an itemised pay statement or standing statement of fixed deductions; or has dismissed them for seeking to enforce a right in relation to a pay statement. This right applies regardless of the employee's length of service.
Employees must make their complaint while employed or within three months of leaving.
Minimum Wage
Workers in the UK aged 16 (and above school leaving age) or over are legally entitled to a national minimum hourly wage. It does not matter where they work, the size of the firm or the worker’s occupation. This includes casual labourers, agency workers, homeworkers, workers on short-term contracts and workers employed by subcontractors.
Workers who aren't entitled to the National Minimum wage
• workers aged under 16 • some people living and working within a family such as nannies, and au pairs. Such a worker will not be entitled to the NMW if they live in the family home where they work and they share meals with the family and they do not have to pay towards their accommodation costs or meals • members of the armed forces (but civilians working for the reserve forces or the ministry of defence are covered) • share fishermen • prisoners • voluntary workers • some trainees on government scheme • workers who are homeless or living in a hostel, who are entitled to Income Support, income-related Employment and Support Allowance or income-based Jobseeker’s Allowance and who are taking part in a scheme run by a charity which provides them with work • residential members of religious communities which are charities • some trainees on European Community Schemes
Apprentices do not qualify for the national minimum wage if they:
• are aged 18 or under, or • are aged 19 or over and are in the first year of their apprenticeship
Fairness at Work
The Employment Relations Act 1999 came into force to promote ‘partnership at work’, also known as ‘fairness at work’. It covers issues such as:
TRADE UNIONS
There has been a great deal of legislation about trade unions over the past 15 years, changes have been made over the right to strike, secret ballots and so on.( Trade Union and Labour Relations(Consolidation) Act 1992) The new act prohibits employees being discriminated against on the grounds of union membership. It also gives employees the right to be accompanied by a union official or fellow employee at a serious grievance hearing.
LEAVE
The act also gives employees more rights to particular types of leave including: o Leave for family emergencies, ie a reasonable time off to deal with a ‘domestic incident’ o Parental leave, ie three month unpaid leave to all employees, including those adopting a child, with the right to return to their job. o Maternity leave.
Maternity Rights
Under the Employment Rights Act 1996 and Employment Act 2002 all pregnant employees, i.e those working under a contract of employment, are entitled to take up to 52 weeks' statutory maternity leave (SML) around the birth of their child. This includes surrogate mothers and mothers who have undergone IVF treatment. It does not matter how long the employee has worked for the employer to qualify.
The purpose of maternity leave is to allow the mother to give birth and to recover from giving birth to her baby, as well as to bond with and care for her new child.
The SML period is made up of 26 weeks' ordinary maternity leave (OML) followed immediately by 26 weeks' additional maternity leave (AML).
Compulsory maternity leave
An employee must take a minimum of two weeks' leave after the birth of her child - or four weeks if she works in a factory.
If an employee gives birth to a stillborn baby, she is still entitled to maternity leave - but only if the birth happens after 24 weeks of pregnancy.
If the stillbirth occurs before the end of the 24th week of pregnancy, an employer may allow the employee to take sick or compassionate leave instead.
If the baby is born alive at any point in the pregnancy but then later dies, the employee is still entitled to maternity leave.
An employee's contract of employment continues throughout both ordinary maternity leave (OML) and additional maternity leave (AML) unless either the employer or the employee expressly ends it or it expires.
Terms and conditions during OML
During OML an employee has a statutory right to continue to benefit from all the terms and conditions of her employment. The only exceptions are terms relating to wages or salary – The employer is still obligated to pay her statutory maternity pay.
An employee is entitled to return to the same job that she had before going on maternity leave if she only took ordinary maternity leave (OML), ie the initial 26-week period of leave. The rules are different where an employee takes all or some of her additional maternity leave (AML), ie the second 26-week period of leave.
Return to work after OML
An employee who returns to work during or at the end of her OML period is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent.
If an employee is prevented from returning to work, she may make a complaint of unfair dismissal to an employment tribunal.
If she returns to work but doesn't get her old job back, she may:
• raise a grievance with the employer, which may result in a sex discrimination or detrimental treatment claim in a tribunal if the employer fail to address it • resign and claim constructive dismissal
Return to work after AML
An employee who returns to work during or at the end of her AML period is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent.
However, if it is not reasonably practicable for the employer to let her return to her old job, she should be offered a job:
• that is both suitable and appropriate for her to do • on terms and conditions that are no less favourable than those for her original job
If the employee is offered a job that fulfils the criteria above and she unreasonably refuses it, she will have effectively resigned.
If the employee is offered a job that doesn't fulfil the criteria, she may:
• resign and claim constructive dismissal • raise a grievance with the employer, which may result in a tribunal claim for sex discrimination or detrimental treatment if the employer fail to address it .
Working Times
Most workers have the maximum hours they should work set down in law under the Working Time Regulations 1998. The law applies to nearly all businesses and to nearly all workers.
The main provisions of this law cover:
• holiday entitlement • the maximum average working week • the right to rest breaks during the working day • the right to rest periods between working days • Hours when working at night.
In general, workers aged 18 and over are entitled to:
✓ 5.6 weeks' holiday a year (previously 4.8 weeks' holiday a year) ✓ work no more than six days out of every seven, or 12 out of every 14 ✓ take a 20-minute break if their shift lasts for more than six hours ✓ Work a maximum 48-hour average week.
Workers aged 16 and 17 are entitled to:
✓ take at least 30 minutes' break if if their shift lasts more than four and a half hours ✓ work no more than eight hours a day and 40 hours a week ✓ Have 12 hours' rest between working days and two days off every week. Under the Employment Act 2002, an employee has the right to request flexible working hours when it is justifiable to do so
Data Protection Act 1998
This Act gives employees the right to see information that their employer holds about them. It says that employees are entitled to review their files and insist on the removal of inaccurate information.
The law also stresses that employees must give ‘unambiguous’ consent before information about them can be processed. They can also refuse to provide sensitive information about things such as their race or religious beliefs unless this is in the public interest, is permitted y law or is part of a legal duty.
The employee under this law has a right of challenge when they are assessed using automated processes. For example things like questionnaires or tests which are processed by computer.
However, this Act has a transitional period of 12 years. This means that companies do not have to allow employees to see existing files, but they do have to show any information collected after the Act came into force. And employees can’t see all file, for example they can’t see their references or materials which might give information about another person.
Whistle- blowers
The Public Interest disclosure Act 1999 is designed to protect whistle- blowers.
Whistle-blowers are people who report or make public the failings of their organisation or staff. It’s particularly important in the public sector in the areas such as health care, but could be equally relevant in land based industries, for example: A farmer maybe allowing toxic residue to flow into a water course or a Kennels, riding centre or other animal care establishment may be mistreating animals, or a supervisor or manager may insist that staff use unsafe working practises to improve output.
In the past it has often been the case that the people who have acted in the public interest has been the ones to suffer as a result of misdeeds coming to light rather than the person who was in the wrong. They often lost their jobs.
However, by virtue of the Public Interest disclosure Act 1999, whistle blowers have some form of protection. The law provides that there will be no limit to compensation payments for employees who lose their jobs unfairly after disclosing fraud or corruption. The law also restricts what is known as ‘gagging clauses’ in contracts of employment which try to prevent people from speaking out.
Employee’s Duties and Employer’s Rights
When someone takes on a job, as well as having rights and being protected from unfair treatment by law they also have certain responsibilities.
Employee must take reasonable care when doing the job. This means that they must not be negligent or take unnecessary risks.
Employees must also obey lawful orders. However, they can refuse to use unsafe machinery or to fiddle their tax and can also refuse to carry out work outside the contract of employment.
Employers on the other hand have the right to discipline staff if they do not fulfil their duties. The ultimate sanction an employer has is dismissal but there are also disciplinary procedures for serious issues.
DISCIPLINE
An employee is entitled to receive details of disciplinary and grievance procedures within 13 weeks of starting work. This is part of the written terms of employment.
Having written disciplinary procedures protects both employers and employees because it helps to avoid misunderstandings. The rules will depend on the type of organisation but often cover the following topics: ▪ Health and safety ▪ Smoking- where and when employees can smoke ▪ Food and drink and whether it is restricted to certain times and places ▪ Absences- reasons why an employee can take time off work and how they should inform the employer if they are going to be absent ▪ Timekeeping, punctuality and flexitime ▪ Work standards-are there set amounts of work or agreed standards ▪ Use of company vehicle ▪ Private phone calls or use of the internet ▪ Misconduct and gross misconduct
See Employment Act 2002
DISCIPLINARY PROCEDURES
ACAS (The advisory Conciliation and Arbitration Service) has a code of practice on the disciplinary rules and procedures. This describes how a reasonable employer should behave. It is not part of the law, but if it is not followed it could mean that the employer loses in a Tribunal. The recommended procedure for a minor breach of contract is: ➢ Formal oral warning- or a written one for a more serious offence ➢ A final written warning if there is no improvement or for further misconduct ➢ Dismissal for yet further misconduct
A written warning should describe the offence and say what the consequences will be if it happens again. Employers can also suspend employees on full pay, without pay, fine or transfer them. However, an employer should be careful or they might find that they are being sued for unfair dismissal.
GROSS MISCONDUCT
Gross misconduct means a very bad offence for which a person can be instantly dismissed, without notice. The term for this type of dismissal is summary dismissal. Gross misconduct includes things like: ➢ Violence or fighting at work ➢ Offensive behaviour or language ➢ Theft or fraud ➢ Drunkenness or drug abuse ➢ Gross negligence or insurbordination
The ACAS Code of Practice recommends that for gross misconduct an employee should be immediately suspended on full pay while the matter is investigated. This should happen within two working days. After the investigation the employee is interviewed and he or she can state their case. They can have a Union representative or fellow employee with them.
After the matter has been considered by management the employee will be notified of the result which could be a written warning, notice, instant dismissal or suspension without pay. If the investigation shows the employee to be innocent, then no further action is taken and all records are cancelled.
GRIEVANCE PROCEDURES
Grievance procedures allow employees to put their own side of a story, as described above or to make a complaint about their treatment at work. The procedures will normally say that an employee must first talk to his or her immediate superior and if the matter cannot be resolved at this level it will be referred to someone more senior.
TERMINATION OF EMPLOYMENT
At some point, people will want to leave a job or their employer will want them to leave. This may happen through an employee giving notice, redundancy or dismissal. See the Employment Rights Act1996
Notice
An employee who has worked for a company continuously for one month or more must give and receive notice of dismissal/redundancy or intention to leave. The notice period must be included in a written statement of employment particulars which must be issued to the employee within two months of them starting work.
The minimum legal notice period to be given by an employer is:
• one week's notice if the employee has been employed by the employer continuously for one month or more, but for less than two years • two weeks' notice if the employee has been employed by the employer continuously for two years, and one additional week's notice for each further complete year of continuous employment, up to a maximum of 12 weeks
An employer can include longer periods of notice in the employment contract.
The minimum statutory notice period which must be given by an employee is at least one week's notice if employed continuously for one month or more by that employer. Note that the maximum notice period is 12 weeks after 12 or more years' continuous service.
Minimum notice does not apply to the following people:
• independent contractors or freelance agents • employees whose fixed-term contracts have come to an end, with a few exceptions.
Dismissal
If an employee has been guilty of ‘gross misconduct’ for example theft at work or assault on staff then they can be immediately or ‘summarily’ dismissed without notice. If an employee is dismissed without proper notice then it may be a case of wrongful dismissal. This involves a breach of contract and the employee can claim damages in the court.
Employers also have a right to sue the employee for breach of contract if they leave a job without giving notice, but there is little chance of actually recovering any money so this rarely happens.
Unfair Dismissal
Employees have the right not to be unfairly dismissed. Employees can claim unfair dismissal if they think:
• the reason given for the dismissal wasn't the real one • They were being dismissed when they have been accused of something they didn’t do. • They were being dismissed because they are pregnant • The employer acted unreasonably, eg by failing to give the employee plenty of warning in the run-up to taking the decision to dismiss them or failing to consult them individually in a collective redundancy situation
Penalties for unfair dismissals
If an employment tribunal finds that an employee has been unfairly dismissed, it may order the employer to reinstate or re-engage them.
There is also a form of unfair dismissal called ‘constructive dismissal’ which is when an employee resigns but feels forced into it by the employer’s behaviour. Therefore Constructive dismissal occurs where an employee resigns because the employer has substantially breached their employment contract. Examples could include:
• cutting a worker's wages without agreement • unlawfully demoting them • allowing colleagues to subject them to harassment, bullying, victimisation, humiliation or discrimination • unfairly increasing their workload • changing the location of their workplace at short notice • making them work in dangerous conditions
The breach of contract can result from either a single serious event or the last in a series of less serious events.
Consequently the individual may claim constructive, unfair dismissal at an employment tribunal. A constructive dismissal is not necessarily an unfair one but it's hard for an employer to show that an action in breach of the contract was, in fact, fair.
The 'employment contract' is what was agreed between you and the worker - whether orally, in writing, or a combination of both - including what must necessarily be implied to make the contract workable.
Employees can usually claim unfair dismissal only if they have worked for the employer for at least one year.
An employee who claims to have been dismissed because of sex, race, and marital status or trade union activities can claim without having worked for the one year period. Dismissing an employee because he is incapable, incompetent or lacks qualification would not be classified as unfair dismissal
Redundancy
It may be the case that the jobs of some or all employees in a work place become redundant. This could be because:
• business stops operating • business relocates • employees carry out work that is no longer necessary, eg due to the introduction of new technology
If this happens, the employer must not only follow a fair redundancy dismissal procedure, but also keep the affected employees - and possibly their representatives - informed.
For it to be redundancy, the employee’s job must have disappeared. It is not redundancy if the employer immediately takes on a replacement, which could be unfair dismissal.
The employer is obliged under law to make a redundancy payment to the employee. An employee being made redundant with two or more years' continuous service has the right to receive:
• a statutory redundancy payment • a written statement setting out the payment amount and how it was calculated
See Employment Rights Act 1996
Retirement
Employees may retire for a number of reasons. They may have reached retirement age - normally the age agreed in their contract of employment - or they may be taking early retirement. Some may finish work because of long-term ill health.
The age discrimination legislation introduced a default retirement age of 65 – An employer can set a retirement age above this but retirements or retirement ages below 65 must be objectively justified. Under the legislation, employees have the right to request to work beyond that age and employers have a duty to consider such requests. The legislation also applies to occupational pension schemes.
Health and Safety
Under the Health and Safety at Work Act 1974 (HASAWA), an employer has a legal responsibility for the health and safety of his employees and anyone else, eg customers, who may be affected by their business and its activities. Health and safety is about preventing people from being harmed at work or becoming ill, by taking the right precautions and providing a satisfactory working environment.
Employers are responsible for the health and safety of, and have a duty of care for, everyone affected by your business and its activities. This includes:
• employees working at work premises, from home, or at another site • visitors to work premises such as customers or subcontractors • people at other premises where work is being carried out, such as a construction site • members of the public - even if they're outside the work premises • anyone affected by products and services designed by the employer, produce or supply
Employers must conduct a thorough assessment of the risks that the business faces. Risk is the chance, high or low, that someone or something could be harmed by a hazard. Hazard means anything that can cause harm, eg chemicals, electricity, a slippery floor.
Employers must have a policy for how they look after health and safety. If five or more people are employed, this policy must be in writing.
Employers also need to comply with certain specific legal requirements including:
• recording and reporting accidents • consulting employees or their safety representatives on health and safety matters • ensuring that employees understand and carry out their responsibilities for health and safety, such as following the safety rules set up
Other specific requirements can include:
• Registering the business • Taking out employers' liability insurance.
An employer is legally required to have employers' liability insurance. This provides cover against claims made by employees for injuries or illnesses they've suffered as a result of working for the employer. The employer must ensure that the certificate of insurance is displayed or provide access to an electronic copy where employees can easily access it - for example, on a company intranet.
Employment Tribunal
An important aspect of employment law is that employees are able to take most complaints to an employment Tribunal (formerly known as an Industrial Tribunal). See the Industrial Tribunal Act 1996
Tribunals hear complaints from employees that they have been unfairly treated. They can award compensation or insist that people are given their job back (reinstated). They hear cases concerned with such issues as: unfair dismissal; redundancy payment disputes; race and sex discrimination; maternity rights.
Generally, a claim must be presented to the tribunal within three months of the employment ending or of the issue that is the subject of the claim.
If the tribunal receives the claim later, it will probably not accept it unless there is a very good reason for it being presented late. There may be a pre-hearing
The tribunal panel is made up of:
• an employment judge - usually an experienced employment lawyer • two lay (non-legal) members - they are appointed because of their experience as, respectively, employers and employees
Sometimes, however, the hearing can be heard by the judge sitting alone.
An appeal against an employment tribunal judgment can only be made on a point of law, ie on the grounds that the employment tribunal misunderstood or misapplied the law, or the judgment was one that no reasonable tribunal would have reached.
The Employment Appeal Tribunal (EAT)
Appeals against employment tribunal judgments are heard by the Employment Appeal Tribunal (EAT). This consists of a judge sitting alone or a judge and two lay (non-legal) members.
CASE STUDIES & QUESTIONS
1. Which of the following job adverts are legal? o Young men wanted to help clear waste in preparation for new parkland o Irish labourers required to help during harvest season o Part time milker required to work on dairy farm o Attractive girl assistant required for busy florists o Wanted: Enthusiastic people aged under 40 to train as sales executive for agricultural machinery firm o Riding stables requires instructor, would suit college leaver o Part time till operator required for garden centre. Suit mature lady o Young person required to help care for animals in local kennels
2. Consider the dialogue below. Does this discussion create a binding contract? David: I am here to apply for the job of kennel assistant Manager : Have you got any experience? David: Yes, I’ve just completed a National Diploma in animal care and I‘ve been working at Hillview Kennels every holiday for the past 3 years Manager: The rate is £3.75 an hour, Monday to Friday, 7am till 3pm. I’d like to offer you the job. Can you start next Monday? David: Yes, fine
3. The Written statement is the same as a contract of employment o True o False
4. It is illegal to advertise a job for a ‘female groom’ o True o False
5. Employees must be given a written statement within a) 13 weeks b) 2 months c) 3 months
6. Employers who employ less than 15 people are exempt from the Sex Discrimination Act o True o False
7. It is acceptable to only employ men for a job which involves heavy lifting o True o False
8. A garden centre would be entitled to refuse to employ a person with epilepsy because it might upset the customers if they had a fit at work o True o False
9. To qualify for maternity pay a woman must have worked for the employer for: a) 1 year b) 6months c) 2 years d) Irrelevant
10. When a woman returns to work after having her baby she must be given her old job back o True o False
11. If an employee is sacked for informing the authorities that the farmer who employed him is polluting a nearby river, the maximum compensation he can get is a) £5000 b) 3 months wages c) There is no limit
12. The Data Protection Act allows an employee to say what information an employer can hold about them o True o False
13. Under the Working times Regulations the numbers of weeks paid holiday workers are entitled to in a year is a) 4 weeks b) 5.6weeks c) 4.8 weeks
14. which of the following would be classed as ‘gross misconduct’? a) A milker at a dairy farm takes home a large cheese b) A Trainee landscape gardener is late for work two days in a row c) A farm labourer takes a day off without asking to go to a friend’s funeral d) A forester refuses to use a safety harness when felling trees e) A riding instructor uses the company horsebox to transport her own horses to a point-to-point without permission
15. The legal term for instant dismissal is ‘summary dismissal’ o True o False
16. The ACAS code of practice is part of the law o True o False
17. An employee can refuse to obey instruction if it will put their safety at risk o True o False
18. Mr Wilson was head gardener on Mr Racher’s estate. Six weeks after starting work he had a row with his employer and insulted Mr Racher in strong language (he swore a lot). Mr Racher dismissed him instantly. Mr Wilson claimed damages for wrongful dismissal.
In your opinion was the employer right or was Mr Wilson wrongfully dismissed.
19. Alice Dunn took a job at Mitchell farms 6 months ago. Within weeks of starting work she had started to set up a branch of the transport &General Workers Union and several staff had joined. Her employer is not keen on having a trade union in the work place and thinks Alice is a trouble maker. He gives her one month’s notice as required by her contract
What rights does Alice have?
20. George Hicks runs a large mixed farm in Norfolk. He has sold half his land and as a result needs to make some of his workers redundant. He decides to make his older workers redundant because they are less fit and are also less likely to have a young family to support
Is this a fair basis to choose who will be made redundant?
21. To qualify for a redundancy payment an employee must have worked for an employer for a) 1 year b) 2 years c) 3 years
Assessment 1. Name three things covered by employment law 2. What is the name of the Act which protects employees from racial discrimination 3. What are the basic elements of a contract of employment? 4. What must be included on an itemised pay slip 5. Give 3 pieces of information that must appear on a written statement 6. What do Employment Tribunals do? 7. Why should you be careful about offering a job at an interview? 8. What Act protects people from racial discrimination at work? 9. Which employers are exempt from Discrimination Act? 10. What maternity rights does a woman who has worked for her employer have 11. What is a ‘whistle blower’ 12. The Employment Relations Act 1999 (fairness at work gives employees more rights to leave. Give an example of one type of leave covered by this Act 13. Name the two main anti-discriminatory Acts and three other Acts in this field 14. What is the legal definition of discrimination 15. Distinguish between direct and indirect discrimination. Give an example of each 16. What other main class of discrimination is there? 17. Give 4 work situations where the anti-discrimination Acts apply.
Statutory duties to employees
• It is the duty of every employer, so far as is reasonably practicable, to ensure the health, safety and welfare at work of all his employees (HASAWA S2.1). This includes: • provision and maintenance of plant and systems of work that are safe and without risks to health (HASAWA S2.2.a) • arrangements for ensuring the safety and absence of health risks in connection with the use, handling, storage and transport of articles and substances (S2.2.b) • provide such information, instruction, training and supervision as is necessary to ensure the health and safety at workplaces under the employer's control • ensure that work places, plant and processes are safe and without risk to health • provide and maintain safe means of access and egress (entry, exit and escape) from premises and work areas. (S2.2.d) Statutory duties to employees
• It is to provide and maintain a working environment for employees that is safe, without risks to health and adequate as regards facilities and arrangements for their welfare at work (S2.2.e). This includes transport , store , handle and use materials in a safe manner. An employer must:
• produce and distribute a statement of safety policy and its implementation to all employees. • consult with employees' representatives on matters related to health and safety and establish safety committees if sought by representatives. Such consultation is guided by published codes of practice. • ensure that those who are not employed are informed of safety and hazards for when they work or are present on employer premises and use equipment and materials. The HASAW Act 74 is backed by the criminal law. (N.B. Employees whose health and safety is affected at work are also protected by their contract of employment and associated civil law responsibilities in respect of employer negligence and their own responsibility to work with due care and attention).
Criminal offences under HASAWA stem from failure to discharge duties, breach of specific sections or non-compliance with an inspector's requirements as authorised by the Act. Directors and senior managers have personal responsibility for health and safety under the Act (individuals are thus not protected by "corporate resources". It is possible that senior management have carried out all their responsibilities and the failure is traceable to a local operations manager who has failed to carry out policy. Such a manager, as an individual responsible for the reasonable care of others, is also liable under civil proceedings.
The employer's duties at common law
Common law (case law) is based on past court judgements, which explain the facts of cases, the law applying and the court's legal reasoning for conclusions or findings. Case judgements are recorded (Law Reports) and form a body of decisions, interpretations or precedents for other courts to follow.
At common law, employers owe employees a general duty to take reasonable care (of themselves and others ) in avoiding injuries, health problems and deaths etc at work.
Employers must
• provide a safe place of work with safe means of access and egress • maintain safe appliances/equipment and plant for doing work • maintain safe systems of work • employ competent, diligent people to do the work. These common law duties are covered by HASAWA (s2) - the general duties of the employer.
Law relating to negligence
The general law of negligence contributes to specific aspects of an employer's (and employee's) duty to take reasonable care. To prove negligence, an injured party must demonstrate that
• a duty of care is owed by the defendant (the employer) to the plaintiff (the employee) • that this duty has been breached • injury, loss or damage stems from the breach. Duties of employers to persons other than their employees
Every employer must conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment, e.g. contractors, are not exposed to risks to health or safety (S3.1).
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Employees and Health and Safety at Work
Duties of employees under HASAWA 1974 It is the duty of every employee while at work:
• to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work • as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with (HASAWA S7). • No person shall intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare in pursuance of any of the relevant statutory provisions (S9). Employee awareness
Thus as they perform their contract of employment, employees must thus be aware of
• the responsibilities of their employer and the contribution they must make to the implementation of policies and practices that the employer has developed for the conduct of safety and safeguarding of health and welfare. • their contribution to fulfilling the duties of employers in respect of persons other than employees (themselves and others). This covers duties in relation to premises (access/egress) and plant/substances on the premises or provided for use there) The Health and Safety Information for Employees Regulations 1989 require information relating to health, safety and welfare to be furnished to employees by means of posters or leaflets in the form defined by the Health and Safety Executive
Employees and Inspectors
Employees need to be award of their obligations (as a representative of the employer) when heallth & sa fety inspectors seek to enter premises if they believe that a dangerous situation exists and wish to make examinations and investigations. Inspectors after all may question employees who may have relevant information and require a true statement of answers. Employees should know however that answers given in an interview are not admissible in evidence if subsequent proceedings are taken against that person.
The manager as an employer agent. must respond to the requirements of improvement and prohibition notices and comprehend the implications of failure to comply with notices (this applies to all staff in the workplace concerned).
Safety representatives A manager as an employer's agent needs to understand the statutory status and role of recognised safety representatives who may
• investigate potential hazards and workplace accidents and carry out inspections • take up employee complaints concerning H&S risks at work making representation to management on H&S and welfare and related matters affecting staff in their area. • employee safety representatives are entitled to have access to documents relating to the workplace health and safety that the employer is required to maintain. • they represent staff groups in consultation with H&S inspectors and can receive information from them. • they attend meetings of safety committees . [pic]
Occupiers of premises
Under the Health and Safety at Work Act employers and occupiers of premises have statutory duties to people other than employees.
The duties cover those
• are not their employees but who • use non-domestic premises as a place of work or where, as provided, they may use plant or substances - thus this would include schools, computer rooms in colleges or adult education pottery studios or even health and fitness clubs. Those controlling the premises must ensure so far as is reasonably practicable the premises: access/egress, plant/substances on the premises or provided for use etc., are safe and without risks to health.
This therefore applies to
• visitors to a workplace (the factory, the office, the warehouse, the shop), • employees of a contractor to a firm • members of the public picking strawberries on a farm • students of all ages • shoppers • and many others. Of course to each of these visitors there is a common law obligation on the part of employers and occupiers - not to be negligent.
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Designers, manufacturers, importers and suppliers
The HASAW
Employment Law is about the legal relationship between an employer and an employee. It is based on the contract of employment. It protects both the employer and the employee.
The laws on employment come from:
• Statutes passed by the UK Parliament, such as the Employment Act 1990 and the equal pay Act 1970;
• European Community in the form of regulations and directives.
• Common Law, which is based on normal practice and includes things like the employers duty to pay wages or the employee’s duty to obey lawful orders
A ‘statutory right’ means a right which is based on the act of parliament.
Employment law covers all aspects of employment- from job adverts and interviews to dismissal and redundancy or retirement.
Adverts and Job Interviews
Job adverts and interviews have to comply with the Equality Act 2010 which has now consolidated and replaced previous legislation such as: Sex Discrimination Act 1975 (amended 1986 & 2001), Disability Discrimination Act 1995 and the Race Relation Act 1976(amended 2000). The Law provides for equal treatment in access to employment as well as private and public services. In other words, adverts for jobs should not discriminate against people because of their sex or race. For example it would be illegal to advertise for a ‘male forester’ or a ‘woman cleaner’. Nor could an advert ask for a ‘Scottish Manager’.
The exceptions to this law are exemplified below:
➢ In some circumstances it is possible to state that being of a particular sex, race, religion/belief, age or sexual orientation is a genuine occupational qualification or requirement for the job.
Therefore, it may be possible to state that being:
▪ of Italian origin is a requirement for a job as a waiter an Italian restaurant so that the restaurant has an "authentic" Italian atmosphere ▪ a man is a qualification for a job as an attendant in a men's public lavatory as some men might object to having a female attendant around while they use the facilities ▪ a Christian is necessary for a job with Christian charity ▪ heterosexual is a requirement for a job with a religious organisation because the religion's believers object to homosexual practices ▪ Over 50yrs is a requirement for a job as an actor playing the part of someone who is retired. ➢ Jobs in private households- but only if the work involves intimate physical contact- so it would be alright to advertise for a ‘live in female companion’ but not for a ‘male gardener’.
By virtue of the Equality Act 2010, it is now unlawful for an employer to impose an age limit when recruiting, unless this age restriction can be objectively justified or is imposed by law. Note that it is not unlawful to ask for ages on application forms. However, care should be taken to ensure that obtaining this information does not lead to unjustified discrimination. It might be better if such questions are saved for a diversity monitoring form that can be separated from the main application.
As with adverts it is also important that interviews are not discriminatory. This covers not only the exact words used, but also attitudes to and treatment of applicants.
Secretary of state for Scotland v Miss Henley
It could also be considered illegal to ask certain questions only of particular candidates. For example it would be discriminatory to ask female candidates if they have children and what they would do if their children were ill during work time and not to ask this question of male candidates.
Employee’s Eligibility
Some people are automatically entitled to work in the UK. Others may have restrictions on how long they can stay, whether they can work or the type of work they can do.
Under the Asylum & Immigration Act 1996, all employers in the UK have a responsibility to prevent illegal migrant working. They must therefore check the entitlement of everyone they plan to employ to work in the UK.
If an employer fails to do this, they may be liable to pay a civil penalty. If they knowingly employ an illegal migrant worker, they may face criminal prosecution, which could result in an unlimited fine and/or a maximum two-year prison sentence.
Contract of Employment
Once a person has been selected for a job, the next stage is to enter into a legally binding contract with that person. As with any contract, this involves: An offer and an acceptance of that offer, and it is also a requirement that the agreement is not illegal for example to defraud tax. The legal foundation of the contract of employment is common law which governs all other types of contract. The contract is legally binding and may be given in either a written form or verbally through interviews, discussions or telephone conversations.
Even if a written contract is not issued, the employer is under a legal duty to provide most employees with a written statement of their main employment particulars within two months of the start of their employment.
The written statement is not itself the contract but it can provide evidence of the terms and conditions of employment between the employer and the employee if there is a dispute later on.
The Written Statement
The Employment Rights Act 1996 and subsequently the Employment Act 2002 lays down conditions regarding the provision of a written statement of the terms and conditions of employment.
All employees, regardless of the number of hours they work per week, are entitled to receive a written statement from their employer, within two months of starting work. The statement describes the main terms of the contract of employment.
The written statement must contain:
• The name of the employer and the employee
• Date when the employment commenced
• Job title
• Hours worked
• Terms of Holiday and holiday pay
• Details of notice and termination
• Sickness or injury provisions
• Pension arrangement.
It is important to note that some terms and conditions of employment for people employed in the agriculture are governed by the Agricultural Wages Boards. This Board was set up under the Agricultural Wages Act (Scotland) 1949. The Board fixes minimum rates of wages and holidays and other terms and conditions of employment for certain categories of employees working within the agricultural industry.
Discrimination
The Equality Act 2010 which consolidates and replaces the plethora of Acts and regulations that formed the anti discrimination laws (i.e : Sex Discrimination Act 1975, Equal Pay Act 1970, Race Relation Act 1976,Disabilty Discrimination Act 1995) protects people from unfair treatment at work because of their characteristics.
The Act is intended to simplify the law by bringing together all the existing anti discrimination legislation.
It is unlawful to discriminate against a person at work because of their:-
• sex • race • disability • colour • nationality • ethnic or national origin • gender reassignment • marriage and civil partnership • religion or belief • sexual orientation • age.
It is also unlawful to discriminate against a person on grounds of their past criminal record. See Rehabilitation of Offenders Act 1974.
Discrimination can be either direct or indirect.
Direct discrimination : According to S. 13 of the Equality Act 2010 occurs when a person is treated less favourably at work because of their sex, race, religion, age, sexuality , disability etc. For example, if an Asian employee is not selected for promotion because of his race, this is direct race discrimination.
Grieg v Community Industry
Indirect discrimination : By virtue of S. 19 of the Equality Act 2010 is the application of a provision, criterion or practice to everyone which has a disproportionate effect on some people and is not objectively justified. For example, a requirement that applicants for a job be over a certain height would have a greater impact on women than on men, as the average height of women is lower than that of men. Or if the employer only gives training to full-time workers, this would indirectly discriminate against women, as most part-time workers are women.
Price v Civil Service
Harassment : This is also a form of discrimination. S.26 Of the Equality Act 2010 explains harassment as where a person is subjected to unwanted conduct related to a relevant protected characteristics and the conduct has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the other. It is also harassment if a person treats another less favourably because the other has rejected or submitted to unwanted conduct of a sexual nature. Harassment can include verbal abuse, suggestive remarks and unwanted physical contact.
Victimisation: According to S.27 of the Equality Act 2010, you may also be discriminated against if you are victimised because you have tried to take action about discrimination. Victimisation is subjecting a person to a further detriment after they try to complain or bring proceedings in connection with discrimination on their own behalf or on behalf of someone else.
Strathclyde RC v Porcelli
The Equality Act 2010 also protects people who have a mental or physical disability from being discriminated against by employers. The Act says that people who have a disability cannot be refused employment or dismissed against at work purely because of their disability as long as it does not affect their ability to do a job.
Therefore it is against the law for an employer:
• to discriminate directly against you if you are disabled or because you are associated with someone who is disabled, for example, your partner or child • to treat you less favourably because of your disability - including recruitment and selection, terms and conditions, dismissal and redundancy (but see below). • not to make 'reasonable adjustments' to the workplace to enable you to work or to continue to work (see below) • to harass you if you are disabled, for example, by making jokes about your disability • to victimise you if you take legal action because of discrimination against you, or if you help someone else to take legal action because of discrimination.
Employers can treat disabled people less favourably only if they have a sufficiently justifiable reason for doing so, and only if the problem cannot be overcome by making 'reasonable adjustments'. For example, an employer would be justified in rejecting someone with severe back pain for a job as a carpet fitter, as they cannot carry out the essential requirements of the job.
Examples of the types of adjustments that an employer might make include: special equipment to help you do your job; transferring you to a different post or work place; altering making physical adjustments to the premises; supplying your hours of work or giving you extra time off.
The employment areas covered by the legislations with regards to discrimination as a whole include: • advertising • recruitment • selection • promotion • transfer • training • redundancy • dismissal • retirement
The Law also provides that employees who do similar jobs at the same workplace for the same employer must get the same pay and terms of employment. Before this Act it was common for women to be paid less than men for the same job and the main reason for the law was to remove this kind of sex discrimination.
Itemised Pay Statements
Employment Rights Act 1996 states that every employee has the right to be given by their employer, at or before the time at which the payment of wages or salary is made a written itemised pay statement. An itemised pay statement must contain the following: • the gross amount of the wages or salary before deductions • the amounts of - and reasons for - any fixed deductions, eg trade union subscriptions, or the total figure for fixed deductions, when a separate standing statement of the details has been provided • the amounts of - and reasons for - any variable deductions • the net amount of wages or salary payable after deductions • a breakdown of each part-payment - such as part by cheque, part in cash
This right to receive an itemised payment does not apply to:
• people who are non-employees, eg freelancers and contractors • certain other groups, including police and some people who work at sea
An employee may complain to an employment tribunal if the employer has failed to give them any kind of pay statement; or has not included all the required details in an itemised pay statement or standing statement of fixed deductions; or has dismissed them for seeking to enforce a right in relation to a pay statement. This right applies regardless of the employee's length of service.
Employees must make their complaint while employed or within three months of leaving.
Minimum Wage
Workers in the UK aged 16 (and above school leaving age) or over are legally entitled to a national minimum hourly wage. It does not matter where they work, the size of the firm or the worker’s occupation. This includes casual labourers, agency workers, homeworkers, workers on short-term contracts and workers employed by subcontractors.
Workers who aren't entitled to the National Minimum wage
• workers aged under 16 • some people living and working within a family such as nannies, and au pairs. Such a worker will not be entitled to the NMW if they live in the family home where they work and they share meals with the family and they do not have to pay towards their accommodation costs or meals • members of the armed forces (but civilians working for the reserve forces or the ministry of defence are covered) • share fishermen • prisoners • voluntary workers • some trainees on government scheme • workers who are homeless or living in a hostel, who are entitled to Income Support, income-related Employment and Support Allowance or income-based Jobseeker’s Allowance and who are taking part in a scheme run by a charity which provides them with work • residential members of religious communities which are charities • some trainees on European Community Schemes
Apprentices do not qualify for the national minimum wage if they:
• are aged 18 or under, or • are aged 19 or over and are in the first year of their apprenticeship
Fairness at Work
The Employment Relations Act 1999 came into force to promote ‘partnership at work’, also known as ‘fairness at work’. It covers issues such as:
TRADE UNIONS
There has been a great deal of legislation about trade unions over the past 15 years, changes have been made over the right to strike, secret ballots and so on.( Trade Union and Labour Relations(Consolidation) Act 1992) The new act prohibits employees being discriminated against on the grounds of union membership. It also gives employees the right to be accompanied by a union official or fellow employee at a serious grievance hearing.
LEAVE
The act also gives employees more rights to particular types of leave including: o Leave for family emergencies, ie a reasonable time off to deal with a ‘domestic incident’ o Parental leave, ie three month unpaid leave to all employees, including those adopting a child, with the right to return to their job. o Maternity leave.
Maternity Rights
Under the Employment Rights Act 1996 and Employment Act 2002 all pregnant employees, i.e those working under a contract of employment, are entitled to take up to 52 weeks' statutory maternity leave (SML) around the birth of their child. This includes surrogate mothers and mothers who have undergone IVF treatment. It does not matter how long the employee has worked for the employer to qualify.
The purpose of maternity leave is to allow the mother to give birth and to recover from giving birth to her baby, as well as to bond with and care for her new child.
The SML period is made up of 26 weeks' ordinary maternity leave (OML) followed immediately by 26 weeks' additional maternity leave (AML).
Compulsory maternity leave
An employee must take a minimum of two weeks' leave after the birth of her child - or four weeks if she works in a factory.
If an employee gives birth to a stillborn baby, she is still entitled to maternity leave - but only if the birth happens after 24 weeks of pregnancy.
If the stillbirth occurs before the end of the 24th week of pregnancy, an employer may allow the employee to take sick or compassionate leave instead.
If the baby is born alive at any point in the pregnancy but then later dies, the employee is still entitled to maternity leave.
An employee's contract of employment continues throughout both ordinary maternity leave (OML) and additional maternity leave (AML) unless either the employer or the employee expressly ends it or it expires.
Terms and conditions during OML
During OML an employee has a statutory right to continue to benefit from all the terms and conditions of her employment. The only exceptions are terms relating to wages or salary – The employer is still obligated to pay her statutory maternity pay.
An employee is entitled to return to the same job that she had before going on maternity leave if she only took ordinary maternity leave (OML), ie the initial 26-week period of leave. The rules are different where an employee takes all or some of her additional maternity leave (AML), ie the second 26-week period of leave.
Return to work after OML
An employee who returns to work during or at the end of her OML period is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent.
If an employee is prevented from returning to work, she may make a complaint of unfair dismissal to an employment tribunal.
If she returns to work but doesn't get her old job back, she may:
• raise a grievance with the employer, which may result in a sex discrimination or detrimental treatment claim in a tribunal if the employer fail to address it • resign and claim constructive dismissal
Return to work after AML
An employee who returns to work during or at the end of her AML period is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent.
However, if it is not reasonably practicable for the employer to let her return to her old job, she should be offered a job:
• that is both suitable and appropriate for her to do • on terms and conditions that are no less favourable than those for her original job
If the employee is offered a job that fulfils the criteria above and she unreasonably refuses it, she will have effectively resigned.
If the employee is offered a job that doesn't fulfil the criteria, she may:
• resign and claim constructive dismissal • raise a grievance with the employer, which may result in a tribunal claim for sex discrimination or detrimental treatment if the employer fail to address it .
Working Times
Most workers have the maximum hours they should work set down in law under the Working Time Regulations 1998. The law applies to nearly all businesses and to nearly all workers.
The main provisions of this law cover:
• holiday entitlement • the maximum average working week • the right to rest breaks during the working day • the right to rest periods between working days • Hours when working at night.
In general, workers aged 18 and over are entitled to:
✓ 5.6 weeks' holiday a year (previously 4.8 weeks' holiday a year) ✓ work no more than six days out of every seven, or 12 out of every 14 ✓ take a 20-minute break if their shift lasts for more than six hours ✓ Work a maximum 48-hour average week.
Workers aged 16 and 17 are entitled to:
✓ take at least 30 minutes' break if if their shift lasts more than four and a half hours ✓ work no more than eight hours a day and 40 hours a week ✓ Have 12 hours' rest between working days and two days off every week. Under the Employment Act 2002, an employee has the right to request flexible working hours when it is justifiable to do so
Data Protection Act 1998
This Act gives employees the right to see information that their employer holds about them. It says that employees are entitled to review their files and insist on the removal of inaccurate information.
The law also stresses that employees must give ‘unambiguous’ consent before information about them can be processed. They can also refuse to provide sensitive information about things such as their race or religious beliefs unless this is in the public interest, is permitted y law or is part of a legal duty.
The employee under this law has a right of challenge when they are assessed using automated processes. For example things like questionnaires or tests which are processed by computer.
However, this Act has a transitional period of 12 years. This means that companies do not have to allow employees to see existing files, but they do have to show any information collected after the Act came into force. And employees can’t see all file, for example they can’t see their references or materials which might give information about another person.
Whistle- blowers
The Public Interest disclosure Act 1999 is designed to protect whistle- blowers.
Whistle-blowers are people who report or make public the failings of their organisation or staff. It’s particularly important in the public sector in the areas such as health care, but could be equally relevant in land based industries, for example: A farmer maybe allowing toxic residue to flow into a water course or a Kennels, riding centre or other animal care establishment may be mistreating animals, or a supervisor or manager may insist that staff use unsafe working practises to improve output.
In the past it has often been the case that the people who have acted in the public interest has been the ones to suffer as a result of misdeeds coming to light rather than the person who was in the wrong. They often lost their jobs.
However, by virtue of the Public Interest disclosure Act 1999, whistle blowers have some form of protection. The law provides that there will be no limit to compensation payments for employees who lose their jobs unfairly after disclosing fraud or corruption. The law also restricts what is known as ‘gagging clauses’ in contracts of employment which try to prevent people from speaking out.
Employee’s Duties and Employer’s Rights
When someone takes on a job, as well as having rights and being protected from unfair treatment by law they also have certain responsibilities.
Employee must take reasonable care when doing the job. This means that they must not be negligent or take unnecessary risks.
Employees must also obey lawful orders. However, they can refuse to use unsafe machinery or to fiddle their tax and can also refuse to carry out work outside the contract of employment.
Employers on the other hand have the right to discipline staff if they do not fulfil their duties. The ultimate sanction an employer has is dismissal but there are also disciplinary procedures for serious issues.
DISCIPLINE
An employee is entitled to receive details of disciplinary and grievance procedures within 13 weeks of starting work. This is part of the written terms of employment.
Having written disciplinary procedures protects both employers and employees because it helps to avoid misunderstandings. The rules will depend on the type of organisation but often cover the following topics: ▪ Health and safety ▪ Smoking- where and when employees can smoke ▪ Food and drink and whether it is restricted to certain times and places ▪ Absences- reasons why an employee can take time off work and how they should inform the employer if they are going to be absent ▪ Timekeeping, punctuality and flexitime ▪ Work standards-are there set amounts of work or agreed standards ▪ Use of company vehicle ▪ Private phone calls or use of the internet ▪ Misconduct and gross misconduct
See Employment Act 2002
DISCIPLINARY PROCEDURES
ACAS (The advisory Conciliation and Arbitration Service) has a code of practice on the disciplinary rules and procedures. This describes how a reasonable employer should behave. It is not part of the law, but if it is not followed it could mean that the employer loses in a Tribunal. The recommended procedure for a minor breach of contract is: ➢ Formal oral warning- or a written one for a more serious offence ➢ A final written warning if there is no improvement or for further misconduct ➢ Dismissal for yet further misconduct
A written warning should describe the offence and say what the consequences will be if it happens again. Employers can also suspend employees on full pay, without pay, fine or transfer them. However, an employer should be careful or they might find that they are being sued for unfair dismissal.
GROSS MISCONDUCT
Gross misconduct means a very bad offence for which a person can be instantly dismissed, without notice. The term for this type of dismissal is summary dismissal. Gross misconduct includes things like: ➢ Violence or fighting at work ➢ Offensive behaviour or language ➢ Theft or fraud ➢ Drunkenness or drug abuse ➢ Gross negligence or insurbordination
The ACAS Code of Practice recommends that for gross misconduct an employee should be immediately suspended on full pay while the matter is investigated. This should happen within two working days. After the investigation the employee is interviewed and he or she can state their case. They can have a Union representative or fellow employee with them.
After the matter has been considered by management the employee will be notified of the result which could be a written warning, notice, instant dismissal or suspension without pay. If the investigation shows the employee to be innocent, then no further action is taken and all records are cancelled.
GRIEVANCE PROCEDURES
Grievance procedures allow employees to put their own side of a story, as described above or to make a complaint about their treatment at work. The procedures will normally say that an employee must first talk to his or her immediate superior and if the matter cannot be resolved at this level it will be referred to someone more senior.
TERMINATION OF EMPLOYMENT
At some point, people will want to leave a job or their employer will want them to leave. This may happen through an employee giving notice, redundancy or dismissal. See the Employment Rights Act1996
Notice
An employee who has worked for a company continuously for one month or more must give and receive notice of dismissal/redundancy or intention to leave. The notice period must be included in a written statement of employment particulars which must be issued to the employee within two months of them starting work.
The minimum legal notice period to be given by an employer is:
• one week's notice if the employee has been employed by the employer continuously for one month or more, but for less than two years • two weeks' notice if the employee has been employed by the employer continuously for two years, and one additional week's notice for each further complete year of continuous employment, up to a maximum of 12 weeks
An employer can include longer periods of notice in the employment contract.
The minimum statutory notice period which must be given by an employee is at least one week's notice if employed continuously for one month or more by that employer. Note that the maximum notice period is 12 weeks after 12 or more years' continuous service.
Minimum notice does not apply to the following people:
• independent contractors or freelance agents • employees whose fixed-term contracts have come to an end, with a few exceptions.
Dismissal
If an employee has been guilty of ‘gross misconduct’ for example theft at work or assault on staff then they can be immediately or ‘summarily’ dismissed without notice. If an employee is dismissed without proper notice then it may be a case of wrongful dismissal. This involves a breach of contract and the employee can claim damages in the court.
Employers also have a right to sue the employee for breach of contract if they leave a job without giving notice, but there is little chance of actually recovering any money so this rarely happens.
Unfair Dismissal
Employees have the right not to be unfairly dismissed. Employees can claim unfair dismissal if they think:
• the reason given for the dismissal wasn't the real one • They were being dismissed when they have been accused of something they didn’t do. • They were being dismissed because they are pregnant • The employer acted unreasonably, eg by failing to give the employee plenty of warning in the run-up to taking the decision to dismiss them or failing to consult them individually in a collective redundancy situation
Penalties for unfair dismissals
If an employment tribunal finds that an employee has been unfairly dismissed, it may order the employer to reinstate or re-engage them.
There is also a form of unfair dismissal called ‘constructive dismissal’ which is when an employee resigns but feels forced into it by the employer’s behaviour. Therefore Constructive dismissal occurs where an employee resigns because the employer has substantially breached their employment contract. Examples could include:
• cutting a worker's wages without agreement • unlawfully demoting them • allowing colleagues to subject them to harassment, bullying, victimisation, humiliation or discrimination • unfairly increasing their workload • changing the location of their workplace at short notice • making them work in dangerous conditions
The breach of contract can result from either a single serious event or the last in a series of less serious events.
Consequently the individual may claim constructive, unfair dismissal at an employment tribunal. A constructive dismissal is not necessarily an unfair one but it's hard for an employer to show that an action in breach of the contract was, in fact, fair.
The 'employment contract' is what was agreed between you and the worker - whether orally, in writing, or a combination of both - including what must necessarily be implied to make the contract workable.
Employees can usually claim unfair dismissal only if they have worked for the employer for at least one year.
An employee who claims to have been dismissed because of sex, race, and marital status or trade union activities can claim without having worked for the one year period. Dismissing an employee because he is incapable, incompetent or lacks qualification would not be classified as unfair dismissal
Redundancy
It may be the case that the jobs of some or all employees in a work place become redundant. This could be because:
• business stops operating • business relocates • employees carry out work that is no longer necessary, eg due to the introduction of new technology
If this happens, the employer must not only follow a fair redundancy dismissal procedure, but also keep the affected employees - and possibly their representatives - informed.
For it to be redundancy, the employee’s job must have disappeared. It is not redundancy if the employer immediately takes on a replacement, which could be unfair dismissal.
The employer is obliged under law to make a redundancy payment to the employee. An employee being made redundant with two or more years' continuous service has the right to receive:
• a statutory redundancy payment • a written statement setting out the payment amount and how it was calculated
See Employment Rights Act 1996
Retirement
Employees may retire for a number of reasons. They may have reached retirement age - normally the age agreed in their contract of employment - or they may be taking early retirement. Some may finish work because of long-term ill health.
The age discrimination legislation introduced a default retirement age of 65 – An employer can set a retirement age above this but retirements or retirement ages below 65 must be objectively justified. Under the legislation, employees have the right to request to work beyond that age and employers have a duty to consider such requests. The legislation also applies to occupational pension schemes.
Health and Safety
Under the Health and Safety at Work Act 1974 (HASAWA), an employer has a legal responsibility for the health and safety of his employees and anyone else, eg customers, who may be affected by their business and its activities. Health and safety is about preventing people from being harmed at work or becoming ill, by taking the right precautions and providing a satisfactory working environment.
Employers are responsible for the health and safety of, and have a duty of care for, everyone affected by your business and its activities. This includes:
• employees working at work premises, from home, or at another site • visitors to work premises such as customers or subcontractors • people at other premises where work is being carried out, such as a construction site • members of the public - even if they're outside the work premises • anyone affected by products and services designed by the employer, produce or supply
Employers must conduct a thorough assessment of the risks that the business faces. Risk is the chance, high or low, that someone or something could be harmed by a hazard. Hazard means anything that can cause harm, eg chemicals, electricity, a slippery floor.
Employers must have a policy for how they look after health and safety. If five or more people are employed, this policy must be in writing.
Employers also need to comply with certain specific legal requirements including:
• recording and reporting accidents • consulting employees or their safety representatives on health and safety matters • ensuring that employees understand and carry out their responsibilities for health and safety, such as following the safety rules set up
Other specific requirements can include:
• Registering the business • Taking out employers' liability insurance.
An employer is legally required to have employers' liability insurance. This provides cover against claims made by employees for injuries or illnesses they've suffered as a result of working for the employer. The employer must ensure that the certificate of insurance is displayed or provide access to an electronic copy where employees can easily access it - for example, on a company intranet.
Employment Tribunal
An important aspect of employment law is that employees are able to take most complaints to an employment Tribunal (formerly known as an Industrial Tribunal). See the Industrial Tribunal Act 1996
Tribunals hear complaints from employees that they have been unfairly treated. They can award compensation or insist that people are given their job back (reinstated). They hear cases concerned with such issues as: unfair dismissal; redundancy payment disputes; race and sex discrimination; maternity rights.
Generally, a claim must be presented to the tribunal within three months of the employment ending or of the issue that is the subject of the claim.
If the tribunal receives the claim later, it will probably not accept it unless there is a very good reason for it being presented late. There may be a pre-hearing
The tribunal panel is made up of:
• an employment judge - usually an experienced employment lawyer • two lay (non-legal) members - they are appointed because of their experience as, respectively, employers and employees
Sometimes, however, the hearing can be heard by the judge sitting alone.
An appeal against an employment tribunal judgment can only be made on a point of law, ie on the grounds that the employment tribunal misunderstood or misapplied the law, or the judgment was one that no reasonable tribunal would have reached.
The Employment Appeal Tribunal (EAT)
Appeals against employment tribunal judgments are heard by the Employment Appeal Tribunal (EAT). This consists of a judge sitting alone or a judge and two lay (non-legal) members.
CASE STUDIES & QUESTIONS
1. Which of the following job adverts are legal? o Young men wanted to help clear waste in preparation for new parkland o Irish labourers required to help during harvest season o Part time milker required to work on dairy farm o Attractive girl assistant required for busy florists o Wanted: Enthusiastic people aged under 40 to train as sales executive for agricultural machinery firm o Riding stables requires instructor, would suit college leaver o Part time till operator required for garden centre. Suit mature lady o Young person required to help care for animals in local kennels
2. Consider the dialogue below. Does this discussion create a binding contract? David: I am here to apply for the job of kennel assistant Manager : Have you got any experience? David: Yes, I’ve just completed a National Diploma in animal care and I‘ve been working at Hillview Kennels every holiday for the past 3 years Manager: The rate is £3.75 an hour, Monday to Friday, 7am till 3pm. I’d like to offer you the job. Can you start next Monday? David: Yes, fine
3. The Written statement is the same as a contract of employment o True o False
4. It is illegal to advertise a job for a ‘female groom’ o True o False
5. Employees must be given a written statement within a) 13 weeks b) 2 months c) 3 months
6. Employers who employ less than 15 people are exempt from the Sex Discrimination Act o True o False
7. It is acceptable to only employ men for a job which involves heavy lifting o True o False
8. A garden centre would be entitled to refuse to employ a person with epilepsy because it might upset the customers if they had a fit at work o True o False
9. To qualify for maternity pay a woman must have worked for the employer for: a) 1 year b) 6months c) 2 years d) Irrelevant
10. When a woman returns to work after having her baby she must be given her old job back o True o False
11. If an employee is sacked for informing the authorities that the farmer who employed him is polluting a nearby river, the maximum compensation he can get is a) £5000 b) 3 months wages c) There is no limit
12. The Data Protection Act allows an employee to say what information an employer can hold about them o True o False
13. Under the Working times Regulations the numbers of weeks paid holiday workers are entitled to in a year is a) 4 weeks b) 5.6weeks c) 4.8 weeks
14. which of the following would be classed as ‘gross misconduct’? a) A milker at a dairy farm takes home a large cheese b) A Trainee landscape gardener is late for work two days in a row c) A farm labourer takes a day off without asking to go to a friend’s funeral d) A forester refuses to use a safety harness when felling trees e) A riding instructor uses the company horsebox to transport her own horses to a point-to-point without permission
15. The legal term for instant dismissal is ‘summary dismissal’ o True o False
16. The ACAS code of practice is part of the law o True o False
17. An employee can refuse to obey instruction if it will put their safety at risk o True o False
18. Mr Wilson was head gardener on Mr Racher’s estate. Six weeks after starting work he had a row with his employer and insulted Mr Racher in strong language (he swore a lot). Mr Racher dismissed him instantly. Mr Wilson claimed damages for wrongful dismissal.
In your opinion was the employer right or was Mr Wilson wrongfully dismissed.
19. Alice Dunn took a job at Mitchell farms 6 months ago. Within weeks of starting work she had started to set up a branch of the transport &General Workers Union and several staff had joined. Her employer is not keen on having a trade union in the work place and thinks Alice is a trouble maker. He gives her one month’s notice as required by her contract
What rights does Alice have?
20. George Hicks runs a large mixed farm in Norfolk. He has sold half his land and as a result needs to make some of his workers redundant. He decides to make his older workers redundant because they are less fit and are also less likely to have a young family to support
Is this a fair basis to choose who will be made redundant?
21. To qualify for a redundancy payment an employee must have worked for an employer for a) 1 year b) 2 years c) 3 years
Assessment 1. Name three things covered by employment law 2. What is the name of the Act which protects employees from racial discrimination 3. What are the basic elements of a contract of employment? 4. What must be included on an itemised pay slip 5. Give 3 pieces of information that must appear on a written statement 6. What do Employment Tribunals do? 7. Why should you be careful about offering a job at an interview? 8. What Act protects people from racial discrimination at work? 9. Which employers are exempt from Discrimination Act? 10. What maternity rights does a woman who has worked for her employer have 11. What is a ‘whistle blower’ 12. The Employment Relations Act 1999 (fairness at work gives employees more rights to leave. Give an example of one type of leave covered by this Act 13. Name the two main anti-discriminatory Acts and three other Acts in this field 14. What is the legal definition of discrimination 15. Distinguish between direct and indirect discrimination. Give an example of each 16. What other main class of discrimination is there? 17. Give 4 work situations where the anti-discrimination Acts apply.
Statutory duties to employees
• It is the duty of every employer, so far as is reasonably practicable, to ensure the health, safety and welfare at work of all his employees (HASAWA S2.1). This includes: • provision and maintenance of plant and systems of work that are safe and without risks to health (HASAWA S2.2.a) • arrangements for ensuring the safety and absence of health risks in connection with the use, handling, storage and transport of articles and substances (S2.2.b) • provide such information, instruction, training and supervision as is necessary to ensure the health and safety at workplaces under the employer's control • ensure that work places, plant and processes are safe and without risk to health • provide and maintain safe means of access and egress (entry, exit and escape) from premises and work areas. (S2.2.d) Statutory duties to employees
• It is to provide and maintain a working environment for employees that is safe, without risks to health and adequate as regards facilities and arrangements for their welfare at work (S2.2.e). This includes transport , store , handle and use materials in a safe manner. An employer must:
• produce and distribute a statement of safety policy and its implementation to all employees. • consult with employees' representatives on matters related to health and safety and establish safety committees if sought by representatives. Such consultation is guided by published codes of practice. • ensure that those who are not employed are informed of safety and hazards for when they work or are present on employer premises and use equipment and materials. The HASAW Act 74 is backed by the criminal law. (N.B. Employees whose health and safety is affected at work are also protected by their contract of employment and associated civil law responsibilities in respect of employer negligence and their own responsibility to work with due care and attention).
Criminal offences under HASAWA stem from failure to discharge duties, breach of specific sections or non-compliance with an inspector's requirements as authorised by the Act. Directors and senior managers have personal responsibility for health and safety under the Act (individuals are thus not protected by "corporate resources". It is possible that senior management have carried out all their responsibilities and the failure is traceable to a local operations manager who has failed to carry out policy. Such a manager, as an individual responsible for the reasonable care of others, is also liable under civil proceedings.
The employer's duties at common law
Common law (case law) is based on past court judgements, which explain the facts of cases, the law applying and the court's legal reasoning for conclusions or findings. Case judgements are recorded (Law Reports) and form a body of decisions, interpretations or precedents for other courts to follow.
At common law, employers owe employees a general duty to take reasonable care (of themselves and others ) in avoiding injuries, health problems and deaths etc at work.
Employers must
• provide a safe place of work with safe means of access and egress • maintain safe appliances/equipment and plant for doing work • maintain safe systems of work • employ competent, diligent people to do the work. These common law duties are covered by HASAWA (s2) - the general duties of the employer.
Law relating to negligence
The general law of negligence contributes to specific aspects of an employer's (and employee's) duty to take reasonable care. To prove negligence, an injured party must demonstrate that
• a duty of care is owed by the defendant (the employer) to the plaintiff (the employee) • that this duty has been breached • injury, loss or damage stems from the breach. Duties of employers to persons other than their employees
Every employer must conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment, e.g. contractors, are not exposed to risks to health or safety (S3.1).
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Employees and Health and Safety at Work
Duties of employees under HASAWA 1974 It is the duty of every employee while at work:
• to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work • as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with (HASAWA S7). • No person shall intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare in pursuance of any of the relevant statutory provisions (S9). Employee awareness
Thus as they perform their contract of employment, employees must thus be aware of
• the responsibilities of their employer and the contribution they must make to the implementation of policies and practices that the employer has developed for the conduct of safety and safeguarding of health and welfare. • their contribution to fulfilling the duties of employers in respect of persons other than employees (themselves and others). This covers duties in relation to premises (access/egress) and plant/substances on the premises or provided for use there) The Health and Safety Information for Employees Regulations 1989 require information relating to health, safety and welfare to be furnished to employees by means of posters or leaflets in the form defined by the Health and Safety Executive
Employees and Inspectors
Employees need to be award of their obligations (as a representative of the employer) when heallth & sa fety inspectors seek to enter premises if they believe that a dangerous situation exists and wish to make examinations and investigations. Inspectors after all may question employees who may have relevant information and require a true statement of answers. Employees should know however that answers given in an interview are not admissible in evidence if subsequent proceedings are taken against that person.
The manager as an employer agent. must respond to the requirements of improvement and prohibition notices and comprehend the implications of failure to comply with notices (this applies to all staff in the workplace concerned).
Safety representatives A manager as an employer's agent needs to understand the statutory status and role of recognised safety representatives who may
• investigate potential hazards and workplace accidents and carry out inspections • take up employee complaints concerning H&S risks at work making representation to management on H&S and welfare and related matters affecting staff in their area. • employee safety representatives are entitled to have access to documents relating to the workplace health and safety that the employer is required to maintain. • they represent staff groups in consultation with H&S inspectors and can receive information from them. • they attend meetings of safety committees . [pic]
Occupiers of premises
Under the Health and Safety at Work Act employers and occupiers of premises have statutory duties to people other than employees.
The duties cover those
• are not their employees but who • use non-domestic premises as a place of work or where, as provided, they may use plant or substances - thus this would include schools, computer rooms in colleges or adult education pottery studios or even health and fitness clubs. Those controlling the premises must ensure so far as is reasonably practicable the premises: access/egress, plant/substances on the premises or provided for use etc., are safe and without risks to health.
This therefore applies to
• visitors to a workplace (the factory, the office, the warehouse, the shop), • employees of a contractor to a firm • members of the public picking strawberries on a farm • students of all ages • shoppers • and many others. Of course to each of these visitors there is a common law obligation on the part of employers and occupiers - not to be negligent.
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Designers, manufacturers, importers and suppliers
The HASAW
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