Purpose of employment regulation

The employment law of UK is encompassed with a group of legislation which is combined together and which regulate one or the other aspect of the employment. It includes the different legislations like the Working Time Regulations of 1998, Equal Pay Act of 1970, Employment Rights Act of 1996 and Equality Act of 2010. The employment law basically governs the relationship during the employment of an employee with their employer. The employment laws also help in regulation of the rights of the employees and also of what can be reasonably expected by the employer from the employee. The following parts cover a discussion on the different aspects of employment law of the nation, particularly which are crucial for human resource personnel.

Aims and objectives

The key aim or the objective of the employment law is to make certain that each person in the workplace is treated in a manner which can be deemed as fair and reasonable. Another purpose of the employment law is to make certain that the people are treated on the basis of principles of natural justice.  

Role of tribunal and court system

Employment law is majorly covered under civil law and when it comes to disputes relating to employment laws, they are initially referred to the Employment Tribunals. Even though the hearings of Employment Tribunals are informal in comparison to the higher courts, they are still deemed as courts of law. The decision of employment tribunals can be appealed on point of law to the Employment Appeals Tribunal. The appeals from Employment Appeals Tribunal can be made to the Court of Appeal and from there they can be made to the Supreme Court, which is the highest appeal court of the nation. Even though Brexit has been passed, it still has to be adopted, and till that is done, UK continues to be a member stated of European Union. Due to this, the decisions from the courts of UK can be referred to the European Court of Justice.

Settlement of cases before and during formal legal procedure

Introduced on April 06^th, 2014 and made mandatory on May 06^th, 2014, the Employment Conciliation Scheme helps in reducing the claims with go to the Employment Tribunal. Without being engaged in this scheme, an employee cannot make a claim to the Employment Tribunal. Under this scheme, the claimant is contacted by Early Support Conciliation Officer and details of the claims are sought and the claimant is asked about conciliation process.

Where a solution cannot be attained through the use of this scheme, the application can be made to the Employment Tribunal after which the ACAS contacts the employee and employer to facilitate a settlement, as is done under the Early Conciliation Scheme. ACAS simply mediates, instead of giving advice to the party. Negotiations have been introduced in this process through Enterprise and Regulatory Reform Act, 2013. It is important that care is taken while putting up a settlement agreement as can be emphasized through Newbury v Sun Microsystems, where the court held that the offer containing settlement sum was binding as the same covered enough details for someone to agree to the terms after understanding them.

Managing recruitment and selection activities

Discrimination laws

Discrimination is giving someone more or less preference on the basis of some specific attributes of such individual. The Equality Act, 2010 prohibits seven different types of discrimination, i.e., direct, indirect, perceptive, associative, harassment, third party harassment and victimization. This act provides nine protected characteristics for making a claim of discrimination and these include age, sex, race, religion/ belief, disability, gender reassignment, sexual orientation, maternity/pregnancy, and marital status/ civil partnership. It is crucial that discrimination does not take place in recruitment and selection process. Apart from the UK laws, the EU law of Equal Treatment Directive 2006/54/EC restricts discrimination and requires equal opportunity to be provided to all individuals.

Direct discrimination takes place when a person is treated in a less favourable manner than other person as a result of their protected characteristic. In Amnesty International v Ahmed, amnesty international had not selected a candidate for a position in Sudan region as they feared for her life. Even though this was a good motive, the EAT held that there had been a direct discrimination.

Indirect discrimination takes place when certain rule, practice or policy is applicable on everyone but comes with worse effect for certain people in comparison to others. In R v Secretary of State ex parte Equal Opportunities Commission, the case was brought against the government by EOC. The employees who had worked full time at that time, for brining unfair dismissal claim, were required to have two years’ service. This issue raised an indirect discrimination claim by the EOC as women would face difficulty in making a case of unfair dismissal as they are more like to be employed part time to take care of their children and on an average would have to serve longer than men. Due to these reasons, the claim of indirect discrimination was upheld.

Perceptive discrimination refers to discrimination owing to the thought that someone holds a particularly protected characteristic, even when they may not have it. Associative discrimination relates to discrimination against a persona as a result of their association with a person having protected characteristic. In Coleman v Attridge Law, requests were made for flexible working pattern by Coleman as her son was disabled. She made an argument that she was being treated in ales favourable manner than parent of nondisabled children who could work flexibly. The ECJ ruled in her favour on the basis of European Employment Framework Directive 2000/78/EC and upheld a case of associative discrimination.

Harassment is the unwanted conduct regarding pertinent protected characteristic as a result of which the dignity of a person is contravened and they are made to feel degraded, humiliated or the like. In Strathclyde Regional Council v Porcelli, two male colleagues were held liable for harassment and direct sex discrimination by the tribunal as they removed Procelli’s belongings, stored equipment beyond her reach, withheld information, made suggestive remarks and deliberately brushed against Procelli.

Third part harassment is something which comes from someone who is not an employee of the company, for instance from its customer. The liability is raised for the employer when the harassment takes place on two occasions at minimum, where the employer is aware of same and where the employer fails in taking the reasonable steps for preventing the same. Victimization refers to the unfair treatment of an employee once they make a complaint or support a grievance raised through the Equality Act, 2010.

Discrimination laws

Employment contracts 

Employment contract are another crucial element of recruitment process. The employers are required to give a written statement to the employee regarding the initial employment particulars within a period of two months from the commencement of employment. An employment contract can also be made in a verbal formal; and thus, during the recruitment process, care has to be made to avoid any verbal commitments being made. Apart from the express terms in the written employment contract, there are certain implied terms which have to be followed by both employer and employees. These implied terms stem from the case laws, customs and practice, work rules, statute, confidentiality, and collective agreements. In United Bank v Akhtar, the six day notice to employee to relocate resulted in successful claim of constructive dismissal as this was a breach of implied term of contract of mutual trust and confidence.

Manner of changing contracts

There can be different situations in which the employment contract could be required to be changed. Where an employer wants to extend their trading hours, they may have to extent the employees’ shifts. This would require a variation of employment contract. The first step in this regard relates to making consultation with the employee to try to get their agreement on change. Where this is successful, a new employment contract is formed, which covers the requisite changes. In this process, consultation is a key part and would depend upon the number of employees a company has; for instance, for 20-99 employee organization, consultation has to last for 30 days, whilst this period is for 45 days for over hundred employees.

Requirements of redundancy law

Redundancy can take place in three situations:

• Employer intends to or has ceased the business;
• Employer intends to or has ceased the business in location where the employee was working; and
• The demand of the work being carried out by the employee has diminished.

In such situations, there is a need to follow the ACAS Code of Practice: Disciplinary and Grievance Procedures, which is not restricted to redundancy situations. This process involves collective consultation. Under the Trade Union and Labour Relations (Consolidation) Act, 1992, a list of information has been set out which has to be given by the employer before the star of consultative process to the representatives which includes information like the reason for proposed redundancy and proposed method of selection. The employer also has a legal duty to look for suitable alternative employment for the employee being made redundant.

Requirements on business transfers

A transfer of undertaking or TUPE takes place when the employer sells a part of or all of the business and where the business is being transferred to new employer. Two kinds of transfer are covered under Transfer of Undertakings (Protection of Employees) Regulations 2006, i.e., economic entity transfer where the identity is retained and the transfer of service. The key purpose of TUPE is to protect the employees on transfer. As is the case with redundancy, a consultation process also undertakes in these cases.

Stakeholder rights in field of pay, leave and working time

Pay is the key part of employment relationship and is a contentious issue. Under the Equality Act, 2010, it is unlawful to discriminate on the basis of gender in the matter of pay, when the men and women carry out same task with same difficulty and in same scenario. The Working Time Regulations 1998 cover the rest breaks, holidays, night work and weekly hours of the employee and is based on the European Directive based on health and safety. As per these regulations an employee cannot be made to work for over 48 hours a week. A result period of 11 consecutive hours in a day and twenty four hours in a week is required. Annual paid leaves are to be given to the full time employee of 28 days per year. Night work is defined as 12 midnight to 5 am.

Employment contracts

Even though the equal pay law has been in existence since a long time, there remains a major pay gap between men and women. And for this purpose, there is a need to manage this different. Where an organization loses an equal pay claim from October 01^st, 2014 onwards, they can be instructed by the Employment Tribunal to carry out pay audit, unless the same has been done in last three years, where it is deemed that audit is not sufficient to address the issue; and where the demerits of undertaking the audit outweigh the merits. The equal pay legislation gives the right to itemised pay statement and right to not suffer any kind of unlawful deductions from pay, along with the employee not to be paid less than the National Minimum Wage.

Key maternity, paternity and other employment laws

Maternity leaves are bifurcated into two periods of leaves, i.e., ordinary and additional and both of these are of 26 week period. This means that the women get 52 week period as maternity leave; though, the paid maternity leave is only for 39 week period. The same law is applicable for adoption leave. The UK laws also provide for paternity leave for the partner of person who adopts or gives birth to a child, for up to two weeks. This leave has to be taken with a period of 56 days from the birth or placement (for adoption) of child. A parental leave can be taken for employees with child below age of 5 for a period of 18 week unpaid leave. There is also an applicability of flexible working, time off for dependants and shared parental leave in UK employment laws.

Requirements of health and safety law

A key employment law area relates to the legislations regarding health and safety of people at workplace, which is covered under the Health and Safety at Work Act, 1974. This legislation sets out the requirement for maintaining the workplace and the equipment; carrying out the risk assessment; safe manual handling; personal protective equipment provision; ensuring safety of usage of display screen equipment; and the provisions related to suitable equipment at workplace. This act sets out the duty of the employer to provide a safe system of work, safe premises and safe place of work, safe and adequate plant and equipment, and competent and safe fellow employees. This act also imposes duties on employee to take the reasonable care for their own safety and health and in cooperating with the employer in making sure that the requirements of health and safety are met.

A key point in this regard, which is worth noting, is that the claims related to health and safety, are not made in Employment Tribunal and instead are made in High Court or the county court. This is because the employees usually look to get compensation for the accident which resulted in their injury at workplace.

Implied duties regarding management of employees

The implied duty regarding the management of work includes that the employee would not be discriminated against. So, the employer has to ensure that the incidents of victimization and harassment do not take place at the workplace. It is crucial that the harassment relates to a protected characteristic in order to bring a claim under the Equality Act, 2010. It is crucial to note that harassment can take place as a result of an isolated incident also, where it is serious enough, as was seen in Bracebridge Engineering Ltd v Darby. In this case, Darby had been criticised due to her leaving early on different occasions. At one instance, two male supervisors stopped her while she went to wash her hands and they thought that she was leaving early. When she denied this, they carried her forcefully in a darkened room, where she was sexually assaulted and lewd remarks were passed. Even upon making complaint with the general manager, they did not take any action. She made a claim of sexual discrimination and harassment and resigned. The employer stated that it was a one off incident yet the EAT made the employer liable for harassment as the issue was deemed as serious.

Managing change and reorganization

Freedom of association

Freedom of association refers to the right of the employee to join any trade union and the employee cannot be put at a detrimental position for doing so, and even for not joining a trade union. Being a member of trade union allows the trade union to be involved in disciplinary situations; however, the trade union is not necessarily to be recognized by the employer. However, some issues can be only negotiated on behalf of the employee where these trade unions are recognized and this recognition can come through four different routes of voluntary, semi- voluntary, automatic and recognition by ballot.

Unfair dismissal regarding misconduct and capability

Under the Employment Rights Act, 1996, five possible fair reasons for dismissal have been covered and these include conduct, redundancy, capability or qualification, statutory ban, and some other major reason. This discussion would be confined to the matter of capability and misconduct.

Conduct is the aptitude, skill, health or the mental or physical quality of a person. Where a person is dismissed for the reasons of them lacking the capability which results in the person not able to perform the job in an adequate manner, it would be deemed as a fair dismissal. However, where the employee is dismissed even when they are properly performing their job, and their incapability is quoted as the reason of dismissal, the employee can bring a case of unfair dismissal. Even when the employee is not performing properly, it is required on part of the employer to try to help the employee in attaining the requisite level of performance. This can include informal talks or use of performance appraisal system. Where these are not successful, a disciplinary warning can be given to the employee. There have to be two warnings given to an employee, before they can be dismissed. There is also a reasonable time to be given to the employee to improve after first warning and before any other warning is given.

In D B Schenker Rail (UK) Ltd v Doolan, Doolan had been working as a Production Manager for the company and this was a role which was safety critical and stressful one. By the end of 2007, a sickness absence was taken by him and he was ready to get back to work in early 2008. Before being permitted to continue with his job, the organization did a medical exam and found that Doolan was stressed. The employer held that the employee was not fit for the particular job and offered alternative roles, which Doolan denied and was untimely dismissed on capability grounds. The Employment Tribunal held this as unfair dismissal. But, this decision was overturned by the EAT as the medical investigation was deemed as a proof of incapability.

Conduct can be classified into misconduct and gross misconduct. The latter includes acts of fraud, theft and violence and the former includes less serious issues like poor punctuality or attendance. With the case of British Home Stores v Burchell, the Burchell test was born, which helps in deciding upon the fairness of dismissal in cases of misconduct of employee. In order for the dismissal to be deemed as fair, there is a need to show that the employee had been guilty of misconduct, the employer had reasonable grounds for believing this after a proper investigation, and that the conducted investigation was reasonable.

Employee right to be accompanied at serious discipline and grievance hearings 

A procedure for statutory dismissal, disciplinary procedure and statutory grievance procedure was established through the Employment Act, 2002. These procedures were aimed at having a clear procedure for managing the dismissals in easier manner. However, these have been replaced with the ACAS Code of Practice: Disciplinary and Grievance Procedures. Now, before an employee is dismissed, there is a need to send a written invitation to the employee to invite them to a disciplinary meeting and to set out the alleged offences. A meeting is to be held with the employee to discuss the issue and determine the need for disciplinary action. Lastly, the employee is to be allowed to appeal against the disciplinary sanction which has been imposed.

The employees have the right to be accompanied at the disciplinary meetings by a colleague or a representative of trade union. Even though the lawyers are not included in this lot, recent trends have shown that the same can be done where the allegations are of serious nature. For instance, where a teacher has been accused of indulging in improper conduct with a child, it would be deemed as an appropriate thing to permit legal representation. Two leading examples of this include the cases of R (G) v The Governors of X School and Kulkarni v Milton Keynes Hospital NHS Trust.

Amnesty International v Ahmed [2009] IRLR 884 EAT

Bracebridge Engineering Ltd v Darby [1990] IRLR 3 EAT

British Home Stores v Burchell [1978] IRLR 379

Coleman v Attridge Law (2008) C-303/06

Coleman v Attridge Law (2008) C-303/06,

D B Schenker Rail (UK) Ltd v Doolan (2011) UKEATS/0053/09/BI

Kulkarni v Milton Keynes Hospital NHS Trust [2009] EWCA Civ 789

Newbury v Sun Microsystems [2013] EWHC 2180

R (G) v The Governors of X School [2011] UKSC 30

R v Secretary of State ex parte Equal Opportunities Commission [1995] 1 AC 1

Strathclyde Regional Council v Porcelli [1986] IRLR 134

United Bank v Akhtar [1989] IRLR 507

Statutes and statutory instruments

Employment Rights Act, 1996

Enterprise and Regulatory Reform Act, 2013

Equal Pay Act, 1970

Equal Treatment Directive 2006/54/EC

Equality Act, 2010

European Employment Framework Directive 2000/78/EC

Health and Safety at Work Act, 1974

Trade Union and Labour Relations (Consolidation) Act, 1992

Transfer of Undertakings (Protection of Employees) Regulations 2006

Working Time Regulations, 1998

Aylott E, Employment Law (Kogan Page Publishers 2014)

Collins H, Employment Law (2^nd edn, Oxford University Press 2010)

Daniels K, Employment Law: An Introduction for HR and Business Students (3^rd edn, Chartered Institute of Personnel and Development 2012)

Honeyball S, Honeyball & Bowers’ Textbook on Employment Law (14^th edn, Oxford University Press 2016)