1. Purpose of Employment Law and how it is enforced.

Employment law provides protection for employees within employment. Such law can
regulate the relationship between employers and employees. Employment law governs
what employers can expect from employees, what employers can ask employees to do, and
employees’ rights at work.

Employment laws ensure a fair and just relationship between both parties and having the
protection should deter employers from exploiting employees in areas such as:

Pay
The National Minimum Wage is the minimum pay per hour most workers under the age of
25 are entitled to by law. The National Living Wage, which came in to effect 1 st April 2016, is
the minimum pay per hour most workers aged 25 and over are entitled to by law.

Equal Opportunities
The Equality Act 2010 legally protects people from discrimination in the workplace and
ensures consistency in what employers and employees need to do to make their workplaces
a fair environment and comply with the law.

Statutory Sick Pay (SSP)

Employees are legally entitled to get SSP if they are too ill to work. If the qualifying criteria is
met (sick for 4 full days or more and earn on average at least £116 per week) SSP is paid by
the employer for a period of up to 28 weeks. Employers can choose to pay more that the
SSP rate (currently £92.05 per week) however they cannot choose to pay less.

Other employment laws cover such areas as:

 Total number of hours worked per week (Working Time Directive)
 Equal Pay
 Maternity, Paternity Parental and Adoption Leave
 Health and Safety
 Holiday Entitlement
 Whistleblowing
 Dismissals
 Transfer of Undertakings
 Redundancy

Whilst some employers may view employment regulations as burdensome, there are gains
to be had for the employer; the reduction of unethical practices that can be damaging to
any company’s brand and reputation, providing consistency in decision making and flexible
working to aid in good work/life balance which can have a positive impact on performance.
That said, from the employer perspective it could be argued that it raises the cost employing
workers and put can financial strain on small businesses.

The creation of employment law is done with consultation of key stakeholders such as Trade
Union Congress, the Confederation of British Industry and the Chamber of Commerce. Acts
of Parliament are then created and set out the key legislative principles. After discussion,

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debate and amendments, voting takes place on the proposals in the House of Commons and
House of Lords. Once the law has been passed by both Houses, it then becomes an Act.

In the UK most employment law is categorised as 'civil law' meaning that it is enforced as a
result of one party (the claimant) suing another (the respondent) either for compensation or
some other remedy in a civil court. The claimant, who is normally a former employee, an
existing employee, or a failed job applicant, therefore uses the court system to allege that
the employer has caused them some kind of detriment and has done so in contravention of
the law.

If any employee considers they have been subject to some kind of detriment or a breach of
an employment law, they can seek redress through one of the following ways:

 The Employment Tribunal

 The County Court
 The High Court

Which court a case is taken to depends in part on what legal matter has to be decided and
partly on the level of compensation that the claimant is seeking.

As a general rule, matters that relate to an alleged breach of an employment statute (that is
an Act of Parliament or a set of regulations issued under an Act of Parliament) are heard in
an employment tribunal. Matters that relate to alleged breaches of the common law such as
a breach of contract or an act of negligence go to the county court. The High Court also
hears common law claims, but normally only does so when the level of damages being
sought by the claimant is in excess of £50,000. (CIPD, 2018)

Employment tribunal hearings are presided over by employment judges and are more
informal than a traditional court hearing.

Employment tribunals deal with claims brought against employers by employees, typically
relating to unfair and wrongful dismissals, discrimination, equal pay, and deductions from
wages. Employees must contact ACAS (Advisory, Conciliation and Arbitration Service) at the
outset to try to resolve the dispute through early conciliation. Upon receiving a claim, the
employment tribunal will take the following steps:

 Log the claim

 Send a copy to ACAS
 Send a copy to the employer (respondent)

At this point, the employer will have a fixed time-frame in which to respond to the claim.
The next stage may be a preliminary hearing or a listing for a full hearing, at which all the
evidence and facts will be heard and considered.

 reinstatement (the employee gets their job back)

 re-engagement (the employee returns to the organisation in a new role)
 compensation
 payment of wages or monies due to the employee
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2. Managing recruitment, selection and appointments lawfully

All those involved in the recruitment and selection process need to have in-depth
knowledge of the legal requirements and an understanding of why these must be adhered
to in terms of enhancing effectiveness of decision-making and the employer brand.

A key issue within recruitment and selection is the law relating to discrimination. Anti-
discrimination legislation is now consolidated within the Equality Act 2010. The purpose of
this legislation is to ensure that discrimination on 9 protected characteristics is outlawed
throughout every stage of employment, including the recruitment and selection process.

The 9 protected characteristics are:

 age
 disability
 gender reassignment
 marriage and civil partnership
 pregnancy and maternity
 race
 religion or belief
 sex
 sexual orientation

The Equality Act (2010) sets out to eradicate discrimination on all levels.
The main types of discrimination are:

Direct
This is where a person is caused detriment because of, or for a reason related to a protected
characteristic, unless there is a genuine occupational requirement for doing so. This may be
where an employer may need to recruit a female carer for a female patient

Indirect
This is where an employer has a rule or introduces a policy or practice that has an adverse
effect of substantially greater number of people who share a protected characteristic. An
example of this could be if an employer changes start working times from 9am to 8am. This
would impact adversely on all females due to the role of working mothers.

Positive
This type of discrimination is where an employer would actively seek or favour individuals
who have a protected characteristic. In the recruitment context, unlawful positive
discrimination would be where an employer recruits a person because he or she has a
relevant protected characteristic rather than because he or she is the best candidate. It is
also unlawful, for example, to set quotas to recruit or promote a specific number or
proportion of people with a particular protected characteristic.

Associative

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Discrimination against a person because of his or her association with another person who
has a protected characteristic is unlawful. For example, if an employer decides not to
promote an employee because it considers that he or she will not have time to concentrate
on the job due to caring responsibilities for his or her disabled mother, this may be
associative discrimination because of the employee's association with a disabled person.

When recruiting, it is key that all managers are aware of how and where discrimination may
take place during the process.

All recruitment documentation such as adverts, job and person specifications should be
scrutinised to ensure they do not discriminate. All application forms should be consistent in
their questioning and only be asking questions relevant to employment and are subject to
robust shortlisting criteria. Finally, candidates selected for offers of employment should be
able to demonstrate the requirements featured in the job and person specifications and
consideration is given in all cases to making reasonable adjustments for those with
disabilities or additional needs.

Once an offer of employment has been made and accepted, a contract of employment has
been created, albeit a verbal one. Within two months, a written statement of terms and
conditions of employment should be issued to the employee. Failure to do so could will give
the employee the right to and should include the following information:

 Name of both employee and employer

 Start date of employment
 Job title/Role description
 Details of any previous employment related to continuous employment
 Hours and location of work
 Overtime details
 Bonus scheme details (if contractual bonus scheme in place)
 Pay, including frequency and payment method
 Annual leave entitlements
 Details of Occupational Sick Pay Scheme/SSP
 Pension arrangements
 Notice periods – both employer and employee
 Termination deductions
 Collective Agreement details
 Intellectual Property Rights
 Confidentiality
 Post Termination Restrictions
 Changes to Particulars of Employment
 References to key policies such as Disciplinary, Grievances, Health & Safety, Vehicles
& Driving, Employee Privacy and Absence.

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3. Contracts of Employment

At some point during the employee lifecycle, it may become necessary to make minor, or
even major changes to contracts of employment. This may be for a variety of reasons such
as economic changes, variations to working practices or changes in legislation. Employers
cannot change employee’s contracts unilaterally. Any changes to contracts that have a
negative impact on the employee leave the employer open to breach of contract and
constructive dismissal claims, which could result in costly damages. That said, if the
employer has acted reasonably in considering all options, consulted with its employees and
given sufficient time in the considerations, the employer may make the changes. In these
cases, the risk of claims being brought against the employer can be minimised by ensuring
there is a benefit to the employee in agreeing to a change such as a payment or other
‘sweetener’ to reach an agreement.

If an employer is planning a major reorganisation that will result in relocation of some

employees to another site and the outsourcing of a major function to a subcontractor then
2 key things are required to be considered; redeployment or redundancy. In the case of
those employees who’s work will now be outsourced, the company has two options;
redeployment or redundancy. In some cases it may not be practical or economically viable
to redeploy and as the work is no longer available to be carried out by the employees,
having been outsourced to an external contractor, redundancy is the only option. In short,
redundancy is a form of dismissal from employment, and in all cases of dismissal, a fair
process should be followed. Employees, depending on length of service, are eligible for
certain rights. These are:

 Consultation with employer (30 days if up to 20 to 100 roles redundant, 45 days for
more than 100 roles)
 Notice period
 Redundancy pay (applies to those with 2 years or more continuous service and
amount will depend on current salary, length of service and age)
 Option to move into alternative role, if economically viable
 Time off to attend interviews for a new job

In all cases, selection for redundancy should be considered objectively and consideration
should be given to the future needs of the business. Reduction of talent pool left after
redundancy should be avoided at all cost as this could be detrimental to the sustainability of
the organisation. Candidates should not be selected for interview based on age, gender,
disability or any other protected characteristic as this could result in unfair dismissal claims.
Consultation with employees should be meaningful and give employees opportunities to put
forward alternative solutions such as reduction in hours, job sharing or other impacting
solutions.

Communication is key when it comes to redundancies, and employers should ensure that
there is plenty of it and it is understood by all involved in the process. There should be a
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clear plan in place so employees facing redundancy know what is involved, who to go to for
advice and support and why they have been selected. Employees should be given the
opportunity to give feedback and suggestions to improve the process where possible.
When a business, or part of one moves to a new owner or merges with another business,
the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) will apply. The
regulations were first passed in 1981, overhauled in 2006 and further amendments made in
2014. These regulations will also apply if a contractor takes over activities from a client or
the client takes over activities from the contractor.

TUPE regulations ensure employees’ terms and conditions of employment, including

continuity of service, are protected following a transfer. An employee of the outgoing
employer automatically becomes an employee of the incoming employer at the point of
transfer. At this point, the employee should continue to enjoy the same terms and
conditions of employment with their new employer. This is fixed for a period of 2 years,
after which point the employer can consult with employees to vary their terms and
conditions.

The process for TUPE should ensure employees are consulted with through appropriate
elected representatives. This could be a trade union, or in the absence of a recognised
trade union, employee representatives could be formally elected. During this consultation
process, all employees should be provided with the following information:

 Confirmation of the transfer

 Reasons for the transfer
 Date the transfer will take place
 Impact on affected employees
 The measures that both transferor and transferee will undertake

Transferors are required to provide information on all employees including: age, terms,
conditions, custom and practice arrangements, liabilities and other relevant information.

4. Pay, leave and working time

To help employers ensure they treat all employees fairly, all workers have rights. Exact
employment rights will vary depending on the type of work employed to do and the specific
terms of each employee’s contract, however employers must ensure that an employees’
statutory rights are adhered to. These are essentially lawful rights that nearly all workers
will be entitled to.

Pay

Employees must be paid at least the National Minimum Wage (NMW). The current rates
are as follows:

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www.gov.uk

In addition to the NMW, employers must ensure that men and women in the same
employment performing equal work must receive equal pay, as set out in the Equality Act
2010. This applies not only to salary, but to all contractual terms and conditions of
employment, such as holiday entitlement, bonuses, pay and reward schemes, pension
payments and other benefits.

Employees who meet certain criteria in terms of length of service are eligible for Maternity,
Paternity and Adoption pay. For maternity and adoption pay the following applies:

 90% of your average weekly earnings for the first 6 weeks

 £145.18 or 90% of your average weekly earnings (whichever is lower) for the next 33
weeks

For paternity pay the following applies:

 Either £145.18 a week or 90% of their average weekly earnings (whichever is lower)

All employees, regardless of length of service, are entitled to statutory sick pay (SSP) if they
are too ill to attend work. Employees are entitled to be paid £92.05 per week and this can
be paid for up to 28 weeks. In order to qualify for this, employees must have been off work
sick for 4 or more days in a row (including non-working days). Many employers provide an
Occupational sick pay (OSP) scheme which can pay higher rates. Currently Williams & Co
provide full pay for employees who are sick and have completed 3 or more months service.
This is up to a maximum of 8 weeks in a rolling 12-month period.

Employees facing redundancy are entitled to statutory redundancy pay based on age,
earnings and length of service. These are currently:

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(www.gov.uk, 2018)

An employer is not permitted to make illegal deductions from an employees’ pay. Many
deductions are made from an employee’s wages, however they are only considered to be
legal if:

 it is required or allowed by law, for example National Insurance, income tax or

student loan repayments
 the employee agrees, in writing, to a deduction
 he Contract of Employment states specific cases where it can
 it is a result of any statutory disciplinary proceedings
 there is a statutory payment due to a public authority
 the employee has not worked due to taking part in a strike or industrial action
 it is to recover an earlier overpayment of wages or expenses
 it is a result of a court order

All employees should receive an itemised payslip which clearly shows wages paid and any
deductions made.

Leave

All employees are legally entitled to 5.6 weeks’ paid holiday per year. This is known as
statutory leave entitlement or statutory annual leave. An employer can include bank
holidays as part of statutory annual leave. Most workers who work a 5-day week must
receive at least 28 days paid annual leave per year. This is the equivalent of 5.6 weeks of
holiday. Part-time workers get less paid holiday than full-time workers. They are still
entitled to at least 5.6 weeks of paid holiday but this amounts to fewer than 28 days
because they work fewer hours per week. (www.gov.uk, 2018)

Employers can however give employees more than the statutory requirement of annual
leave and many employers choose to give additional leave as a length of service award.
Currently all Williams & Co employees enjoy 6.6 weeks’ paid holiday plus an additional 1
week that can be earned through length of service.

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In addition to annual leave employees have the right to take paid time off for antenatal care
and appointments and a reasonable amount of unpaid time off to care for a dependent in
an emergency.

Those aged 16-17 have the right to unpaid time off for study or training and all employees
who are members of a trade union are entitled to unpaid time off to attend trade union
activities.

Other statutory entitlements surrounding leave include maternity, paternity & adoption
leave along with sick leave.

Working Time

Employers have to organise their employees and the hours they work in order to achieve
the best in terms of meeting the needs of the business as well as what is economically viable
for the organisation. That said, there are laws that regulate how many hours employees can
work, depending on the type of work they do and the age of the employee.

The Working Time Regulations (1998) implement the European Working Time Directive in to
UK law. Some of these laws are enforced by the Health and Safety Executive and these are:

 The maximum weekly working time limit

 Night working limits
 Health Assessments for night workers

Employment law covers the remaining laws which are:

 Time off
 Rest break entitlements
 Paid annual leave entitlements

Employees cannot work more than 48 hours a week. This is normally averaged out over a
17-week period. That said, employees that are over 18 can choose to work more than 48
hours per week. This is called opting out and can be done by the employee voluntarily and
in writing by signing an agreement. An employer can request an employee to opt out,
however if the employee chooses not to they cannot be dismissed or treated unfairly for not
doing so. There are employees in certain roles that are not permitted to opt out of the 48-
hour working week and these are:

 airline staff
 a worker on ships or boats
 a worker in the road transport industry, eg delivery drivers (except for drivers of
vehicles under 3.5 tonnes using GB Domestic drivers’ hours rules)
 other staff who travel in and operate vehicles covered by EU rules on drivers’ hours,
eg bus conductors
 a security guard on a vehicle carrying high-value goods
(www.gov.uk, 2018)

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Currently, full time employees at Williams & Co work 40 hours a week over 5 days, with the
exception of the sites in Manchester and Milton Keynes, which is 40 hours a week over 7
days.

If an employer fails to comply with any of the statutory provisions laid out by the law, they
could find themselves facing tribunal claims.

Health and Safety and the Law

Every employer has a duty ensure, as far as reasonably practicable, the health, safety and
welfare at work of all it’s employees. The Health and Safety at Work Act 1974 brought
together a range of different laws that govern health and safety issues within the workplace.
The Health and Safety Executive (HSE) are the body responsible for the implementation and
monitoring of health and safety across the UK. In addition to the statutory legislation,
common law, in terms of the implied terms of the contract of employment, requires the
employer to protect employees, and the employee to protect the health and safety of
themselves and of fellow employees and other stakeholders.

Employers have a duty to provide:

 a safe place of work
 a safe system of work
 adequate plan and equipment
 a workplace resourced by employees who are aware and capable of their duties

Failure of employers to fulfil the above requirements could result in constructive dismissal
claims. In addition, employees who are physically injured or suffer undue stress as a result
of an employer’s actions or lack of actions may claim personal injury within the civil courts.

All workplaces must comply with the Health and Safety at Work Act. This requires employers
to provide (where reasonable) a safe and healthy workplace with adequate welfare
facilities. Employer’s obligations in terms of Health and Safety (H&S) include:

 Provision of an open, transparent and accessible H&S policy

 Appointment of H&S representatives and consultation with these
 Appointment of a person to undertake risk assessment
 If requested, establishment of a H&S committee
 Undertake regular risk assessments
 Prevention of risk
 Informing, educating, raising awareness and training of staff
 Provision of resources to reduce risk

Risk assessments feature in reducing risk in the workplace and by employers carrying out
risk assessments they can have a greater defence against claims rather than those
employers who have failed to carry out risk assessments. The employer’s duty of care
should also extend to consider workplace stress and wellbeing.

Express and Implied Terms

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An employer has duties and obligations which are often detailed in the employees’ contract
of employment. These are referred to as terms of the contract and will included items such
as pay, leave, occupational sick pay details etc. In addition to these expressed terms of
employment, there are other contractual terms that will apply to an employee however
these are not explicitly stated as they are obvious to both the employer and employee.
These are referred as implied terms of contract and can include the following:

 duty to provide a secure, safe and healthy environment

 the employee and employer have a duty of mutual trust and confidence
 the employee has a duty to obey any reasonable instructions that help the
organisation legally meet its aims and objectives
 duty of the employer to pay wages and provide work
 any terms that are necessary to make the contract workable, eg that someone
employed as a driver will have a valid driving licence
 Statutory rights such as the right to equal pay and duties

Implied terms cannot be varied as many are underpinned by employment legislation (e.g.
duty of care in terms of Health and Safety). Agreements or custom and practice can be
varied however the employer needs to act reasonably (e.g. undertake timely consultation)
and justify their proposed actions for the changes

Freedom of Association

All employees have the right under legislation to join a trade union and not to be
discriminated based on their trade union or non-trade union membership. Workers are
protected against:

 being offered incentives by their employer not to be a trade union member

 being persuaded not to take part in the activities of trade unions
 being encouraged to give up having, their terms and conditions of employment
determined by a collective agreement negotiated by their union
 detrimental action by their employer for being, or not being, a union member
 dismissal for making use of the services of the union or refusing to accept any of the
incentives

Unfair dismissal

There are many reasons why an employee may be disciplined or dismissed from
employment, however most cases are a result of either misconduct or capability.
Misconduct refers to such issues as:

 dishonesty
 refusal to carry out reasonable instruction
 brining company in to disrepute
 Harassment
 Failure to follow procedures

Capability refers to:

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  Poor performance
 Inability to carry out duties
 Poor health

Dismissal is normally fair if an employer can show that it is for one of the following reasons:

 a reason related to an employee's conduct

 a reason related to an employee's capability or qualifications for the job
 because of a redundancy
 because a statutory duty or restriction prohibited the employment being continued
 some other substantial reason of a kind which justifies the dismissal.

In the case of a fair dismissal, the employer is likely to have shown they have acted
reasonably. Regardless of the reasons for dismissal, by following a fair process that would’ve
established the facts of the situation, misconduct or performance. An investigation is often
carried out to gather all the information relevant from the individual concerned and other
employees or persons involved. In acting reasonably, the employer should consider
previous performance, length of service and mitigating factors. By ensuring policies,
procedures and good practice are adhered to throughout will ensure consistency and
fairness during the process.

In the case of a dismissal for misconduct, in addition to the afore mentioned reasons, the
following key points will ensure the employer has acted fairly:

 The employee is aware of the policy and process

 The ACAS Code of Practice has been followed
 The employee is informed in writing of the alleged offence
 The decision to dismiss is not taken by a single person
 The employee is fully aware what constitutes gross misconduct
 Employee has access to advice and representation
 All facts have been established and the employee has been provided with a chance
to respond to the allegations or findings of the investigation
 The decision or sanction is proportionate to the actual offence
 Decision taken is reasonable and can be justified by the employer
 The individual has been provided with an opportunity to appeal against a decision

In the case of a dismissal for reasons of poor performance, it is important that the employee
is firstly aware of ‘what good looks like’. All too often managers shy away from having
difficult performance related conversations with underperforming employees and the
outcome is that employees are dismissed sometimes without a full understanding of what
they could’ve done to improve to retain employment. A good starting point would be to
implement a ‘Performance Improvement Plan’ often referred to in HR as a PIP. A PIP can
clearly lay out what the issues are surrounding the poor performance, what actions will
need to be taken by the employee to improve and during what time period. Regular
reviews of a PIP will ensure that there are no surprises if the outcome ends in a dismissal. If
a formal process is followed it should ensure the key points bulleted below are followed:

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  The employee is aware of the policy and process
 The ACAS Code of Practice strictly adhered to
 The employee is already aware of the poor performance and previous steps taken
have failed to improve the individual’s performance or output
 The individual has already been informed of the impact and what could happen if
performance does not improve
 Employee has access to advice and representation
 All facts have been established and the employee has been provided with a chance
to answer these and determine solutions
 The performance objectives are SMART – Specific, Measurable, Achievable, Realistic
and Time Bound
 The individual is provided with reasonable development, time and resources to
succeed
 Decisions are reasonable and can be justified
 Redeployment has been given consideration
 Policy and procedure is clearly followed and adhered to

During a formal hearing, the employee has the right to be accompanied by a colleague or
trade union representative, not acting in a legal capacity. It is often the case that employees
choose not to take advantage of this right and attend unaccompanied.

However, dismissals are classed as 'automatically unfair' if the reason for dismissal is
connected with an employee exercising specific rights relating to:

 pregnancy: including all reasons relating to maternity

 family reasons: including parental leave, paternity leave (birth and adoption),
adoption leave or time off for dependants
 representation: including acting as an employee representative
 trade union membership grounds and union recognition
 part-time and fixed-term employees
 pay and working hours: including the Working Time Regulations, annual leave and
the National Minimum Wage. (ACAS, 2018)

In order for a dismissal to be fair, the onus is on the employer to prove that the reasons
for dismissal were justified (i.e. there was a detrimental impact on the organisation’s
business) and reasonable (i.e. the severity of the issue was taken into account and due
process was followed).

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 The basis of unfair dismissal law is that employees have the right to be treated fairly. In
making a claim of unfair dismissal the employee needs to be able to demonstrate that
the employee was dismissed, and that the dismissal was unfair for a specific reason.

Total word count: 4860

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