Safeguarding Employees through Employment Law

Lead objectives and Aims of the Employment Regulation 

As the name implies, this act has been made to provide a safeguard to employees. In an employment, an employee faces many of the issues such as Bullying at the workplace, discrimination on a different basis and many more. Before the development of this law, no certain remedies were available to employees. Employees were not aware of the fact that in actual what rights they have. In order to communicate the rights of employees and to provide better remedies to them, the act has been developed. In addition to this, many of the topics and subjects are there on which no certain rules were there before the enactment of this act and therefore every organization was making rules according to them. Such subjects included working hours, Redundancy, working environment, minimum wages and so on (CIPD, 2018).

In such a scenario, the employers were making policies and rules for the betterment of the organization and not for the employees as a proper law were absent. To ensure that policies must of an organization is made keeping the interest of employees in mind, the act came into force.

Role of the tribunal and courts systems

Apart from the development of law, this is also important that people must follow the same. For this purpose, courts and tribunals are there. These are the authorities, which entertain the cases related to employment law. In employment relations, many of the issues are involved. Many of the cases are there which attracts issues such as bullying at workplace or harassment (Toughnickel, . Legal rights are granted to employees under the act but what about their enforcement. Here the role of tribunals and courts comes into light. Whenever a case related to employment law knocks the door of the court, Judges sitting over there hear the facts of the case and based on rules and regulation of act provides the justice to the victim parties.

Courts and tribunals grant justice in cases related to employment law and the same brings out a fear among other people involved in such cases, hence this can be stated that these authorities have their direct as well as an indirect role in the area of employment law.

The procedure adopted by the courts to settle a case 

The courts have established to provide justice to the innocent parties under an employment dispute. The lead focus of these tribunals and courts remains on claim settlement and dispute resolution. The proceedings under an employment relationship start with the reporting of a case. When an employer or employee reports an issue to the tribunal, the same calls upon the parties to the case. In order to provide a proper justice court hears all the parties to a case and reviews all the circumstances. At last, after such hearing and reviewing of proofs and witnesses, the courts reach up to a decision. The proceedings to set out an employment dispute are similar to any other civil or criminal cases before the courts. By following the proper procedure as mentioned above, the disputes related to employment contracts are used to settle before the courts.

Importance of Courts and Tribunals in Employment Law

Principles of discrimination law in recruitment, selection and in employment 

In every organization, the activities related to recruitment and selection must be done lawfully. It means it becomes the responsibility of an employer to choose the fair practices while conducting such activities. Now the issue involved in the situation is to check that what is fair and lawful. In order to answer the query this is to be stated that while recruiting or selecting any employees in an organization or later on too, there must not be any discrimination between/among the employees. An employer must ensure that while selecting any employee for the employment, the decision must not be affected by any of the factors such as sex, religion, looks, cast or so on. Equality Act, 2010 is the legislation in the UK that controls the issue of discrimination in an employment contract. Under this act, some characteristics are mentioned based on that, discrimination is not allowed among the employees (Forum of Private Business, 2018). These characteristics are known as protected characteristics and are mentioned as under:-

• Disability
• Age
• Race
• Sex
• Religion
• Sexual Orientation
• Gender Reassignment
• Maternity and Pregnancy
• Civil Partnership and Marriage (Equity and Human Rights Commission, 2018)

Therefore, this is to advise that an employer must not make any difference between his/her two employees based on the above characteristics.

While preparing a presentation for the line manager, this is to state that the following points are mandatory to be included in the subjective presentation:-

• The criteria for applying for the post must be a valid one and such vacancies must remain open for all the eligible candidates regardless of their cast, creed, gender or any other personal characteristics.
• Selection procedure must be free from any baseless discrimination
• Short listing of candidates also must be free from discrimination.
• For the same class of work, similar salary must be offered to different employees.

Not only in recruitment and in selection but afterward too there must not be any discrimination between the employees. All the aforesaid points are needed to include in the presentation in order to inform the line managers a lawful manner in which recruitment and selection procedure must be done.

An employment contract is a document that set out all the terms and conditions related to an employment agreement. Such contracts can be oral or written one. In order to ignore all the future disputes, this is advisable for both employees as well as for employer to develop such contracts in written mode. The Employment Rights Act 1996 is an important legislation to discuss here. According to the provisions of this act, an employee is entitled to receive a written statement containing all the terms and conditions related to his/her employment within a period of 2 months from the date of initiating work. While developing the employment contract, all the possible terms and conditions should be included.

Majorly two types of terms are there in an employment contract that are expressed and implied terms. Both the parties i.e. employer and employee are bind with expressed as well as with implied terms. Expressed terms are those, which are clearly stated in an employment contract, whereas on the other side, an implied term does not mention in an employment contract but treated as a part of the same because of the nature of employment. Some of the examples of an implied term are terms related to culture, collective agreements, workplace environment and so on. At the time of any dispute, the courts consider an employment contract as a proof and therefore the same must be established and developed very carefully.

Recruitment and Selection in Employment Law

Changes in Employment Contract

An employment contract is a legal document that can be changed according to the requirements of situations. Restructuring of a business is a necessity of the current working environment. In a business, many times some situations came across the way of managers where they need to change the basic structure of their organization. Cause of such changes, the employment agreements need to be modified sometimes. Such modifications can be related to shift hours, salary, place of working or any other terms of an employment. Such changes must be lawful. It means a proper procedure must be followed in the process of making such changes effective.

In order to describe this lawful procedure, this is to be stated that firstly an employer must discuss these changes with the employee. Sometimes, an organization has several employees, hence in such a scenario, the employer can choose the way of collective consultation to discuss these changes with the employees. However, after the collective consultation also, an employer will be required to talk with every employee severally in order to address his or her individual concerns. The consultation is the primary way to effect an employment contract, yet some other options are available to the employer. If an employee does not become agree for the changes in his/her employment contract then the employer can do the following:-

1. He/she can make the changes in against of the consent of the employee.
2. Dismiss the employee or can offer new terms to him/her.
3. Drop the plan of re-organization of the business

Although in using aforesaid ways an employer can have to bear some losses.

Requirements of Redundancy Law

Redundancy is a situation where the office of an employee remains no longer required for his/her employer and therefore they are forced to leave the organization. Management of Redundancy is a much-required thing in an employment contract as the same directly affect the employment of an employee. An employer is required to manage the same lawfully. Similar to changes in an employment contract, redundancy also must be informed and discussed with the employees first. An employer can discuss the same with employees in the following manner:-

• Collective consultation: – If many of the employees are there who are expected to suffer from redundancy then in such a situation, an employer can choose the way of collective consultation to inform redundancy to employees. The period of such consultation depends on the number of concerned employees (The Money Advice Service, 2018).
• Individual consultation: – where the numbers of effective employees are less than 20, then the employer can use this mode. In this process, an employer gets to know about the specific individual issues.
• Provide alternative employment:-  In the case of redundancy it becomes the responsibility of the employer to offer a suitable alternative to his/her employee (acas (a), 2018)

A business transfer refers to a circumstance where an employer transfers his/her business to a third party. In such a situation, the employees of an organization remain the same but the employer gets changes (Gov.Uk, 2018). Such business transfers also need to be informed to employees, as the same is important for them. Business transfers affect the employees because their employer is expected to be changed. This is the reason that an employer must properly communicate their employees with such transfers. As per the provisions of Undertakings (Protection of Employees) Regulations 2006, two tasks are needed to be done in cases of business transfers, which are as follow:-

1. Consultancy:- An employer must discuss and inform to his/her employees about business transfers. In such a discussion, he must inform the employees some facts such as reason of business transfers, the proposed changes, and other elements of a transfer (Legislation .gov.uk, 2018).
2. Employee Liability Information:- The present employer is liable to provide all the necessary details of all the affective employees to the new owner if the business (XpertHR, 2018).

Employment Contracts in Employment Law

Statutory Rights of employees

Under various laws, an employee has many of the rights in relation to pay, leaves, and working hours. These rights are mentioned hereunder:-

1. Rights related to pay: -Equality Act 2010 demands that there must not be any discrimination between the pay of two employees who does the same work in an organization (Equal Pay Portal, 2018). Further, it was sentenced in the case of Springboard Sunderland Trust v Robson [1992] IRLR 261 that two employees are required to be paid equally even if they do different jobs in those situations where the nature of jobs have similar value.

1. Leaves:-Moving towards the leaves available to the employee, this is to state that a full-time employee is entitled to take a leave of 5.6 weeks in a year. Such 5.6 weeks can include as well can exclude the bank holidays according to the will of the employer.

1. Working Hours:-Working Time Regulations 1998 is the lead legislation that defines that a full-time employee of an organization is required to devote his/her 48 hours in a week to his/her workplace. If an employee voluntarily wants to give more time then he/she is free to do so but an employer cannot demand so without offering extra pay (O’Gallagher, Lewis, Mercieca and Moutray, 2013).

Equality Act 2010 does not only focuses on equal pay but also enlighten the requirement of equal working conditions at a workplace regardless of the gender of an employee. The act consists three of following requirements:-

• Similar/ Like work: -The provisions related to equality stated under this act will only be applicable in those circumstances where the work of two employees is of a similar nature.
• Works must belong to the same category: -In many organizations, employer divides the work into categories or gives them different ratings by the way of analytical job evaluation. For the application of the provisions of this act, this is necessary that work of two or more employees must fall into the same category or employer must provide them same rating.
• Work of the equal value: If no rating has given by the employer, them in such a situation the provisions of the act law will be applicable if the work of two employees is of similar value.

As the name implies, an employer additionally provides these rights to his/her employees. Pursuant to the provisions of employment law, an employer is liable to provide some additional family-friendly rights to his/her employees such as paternity leave, maternity leave, and so on. A female pregnant employee is eligible for two kind of maternity leave one is ordinary and another one is additional. Both of such leaves are allowed for 26 weeks, however, in total, these leaves must not go beyond the 52 weeks. The employer is only liable to provide the pay for 39 weeks during the maternity leave and not for total 52 weeks (Williams, 2016).

Similar to maternity leave, paternity leaves are also available to those male employees who became a father. Paternity leaves are allowed of 2 weeks, during which the employee is entitled to get his pay with the rate of £139.58 per week.

The flexible working environment is also another family-friendly employment right, which is available to those employees who have completed the 26 weeks oh working/ employment on or before 30^th June 2014.

Major Requirements of Health and Safety Law

As the name implies, the law has been created to keep the employees healthy and secure during the hours of working. Health and Safety at Work Act 1974 is a legislation that ensures the protection of an employee from some negative factors such as harassment, bullying, and stress at workplace. As per the provisions of this act, it is the liability of an employer to provide

• Safe premises and workplace,
• Safe work system
• Safe and adequate equipment and machinery.

The only employer is not responsible for the health and safety of an employee, but it is the liability of employees too to keep themselves safe during the working hours and does not behave negligently.

Implied Duties

Implied duties are not those, which are not mentioned in an employment contract but are a significant part of an employment relationship. Not everything can be covered under an employment contract and therefore the concept of implied duties has emerged. Such duties do exist on the part of an employer as well as on the part of an employee. If something is not written in an employment contract, it does not mean that the same does not exist. Such duties have their great significance as both the parties i.e. employer and employee need to perform such duties in addition to their expressed liability. These duties provide additional protection to victim parties in the absence of an expressed duty that is due significant and breach of such duties attract the same penalties as a breach of expressed duties do under the employment law.

Changes in Employment Contracts in Employment Law

Article 11 of the European Convention on Human Rights provides an employee, the right to join an association. The article says that every employee has right to become a member of an association of his/her will. It means an employer cannot stop an employee by doing so. The right provided under this article is termed as Freedom of Association. According to the principles of this article:-

• Every employee has the right to join associations or group of their choice including the trade unions.
• The right provided under this article must not be used for any adverse cause such as to defeat the values of society.

An association can represent the members thereof. Further, this is to state that this right is not available to the members of civil services, police departments, and armed forces.

Requirements of unfair dismissal law

A Dismissal is treated unfair where the same is done without any proper and fair grounds. Employment Rights Act 1996 provides that an employer cannot dismiss an employee on unfair terms. Now the issue is to check that what the unfair conditions are. Under this act, some situations are mentioned, which will not be treated as unfair. It means an employer can dismiss an employee based on such grounds. These grounds are as follow:-

1. Redundancy:-If there are circumstances of redundancy and employer do not find any way out after using all the available options, then he/she can dismiss an employee whose office is no longer of use for the employer.
2. Conduct: -If an employee does some conduct which are not allowed under employment law and if the act of an employee comes under the category of misconduct then in such situation, the employer will have the power to dismiss an employee.
3. Capability:- The case of DB Schenker Rail (UK) Ltd v DoolanUKEATS/0053/09/BI is a lead one in this area. In the decision of this case, the court held that a dismissal would not be treated as unfair if an employer does so cause of incapability of doing work on the part of an employee.
4. Statutory Ban:- Under The Employment Rights Act 1996 some situations are mentioned there where an employer can no longer provide the employment to an employee. Therefore, in such situations, an employer can fairly dismiss an employee.
5. Other reasons:- If apart from the above situations, a circumstance is there when an employer thinks that it is necessary to dismiss an employee, then he/she can do so but there must be a reasonable ground behind doing the same.

Rights of employees to be accompanied

In case of any disputes, every employee has the right to be accompanied. He/she can be accompanied by his/her trade union too. This is necessary to state that an employee does not have right to be accompanied by a lawyer except in that situation where the matter of dispute is so serious which can lead an adverse impact on the future of employee (Daniels, 2016). Acas Code of Practice: Disciplinary and Grievance Procedures is a legal backing which provides such right to an employee.

After the case of Toal and another v GB Oils Ltd UKEAT/0569/12, it has reviewed that the aforesaid code was not as effective as required and hence recently the same has been amended by ACAS. Now the amended code defines the provisions and scope of the right to be accompanied in relation to grievance hearings and disciplinary meetings. The coded states the followings:-

• To avail the subjective rights, an employee is required to generate a reasonable request.
• An employee can pick the companion of his/her will/choice.
• If the companion is not available then the employer will postpone the hearing according to other provisions of the code.
• A companion can address the issues, hear the other parties and can respond on behalf of the employee but cannot answer on behalf of the same (acas (b), 2018).

The rights are provided for the security of interest of an employee and hence an employee is required to use the same for a proper purpose.

References

acas (a) . (2018) Collective consultation on redundancies. [online] Available from: https://m.acas.org.uk/media/pdf/l/2/pdp-collective-consultation-on-redundancies-accessible-version-July-2011.pdf [Accessed on 08/10/2018]

acas (b).  (2018) Code Of Practice On Disciplinary And Grievance Procedures. [online] Available from: https://m.acas.org.uk/media/pdf/f/m/Acas-Code-of-Practice-1-on-disciplinary-and-grievance-procedures.pdf [Accessed on 08/10/2018]

CIPD. (2018) Employment Law. [online] Available from: https://www.cipd.co.uk/knowledge/fundamentals/emp-law [Accessed on 07/10/2018]

Daniels, K. (2016). Introduction To Employment Law: Fundamentals for HR and Business Students (4^th ed.). London: Kogan Page Publishers.

DB Schenker Rail (UK) Ltd v Doolan UKEATS/0053/09/BI

Equal Pay Portal. (2018) Law. [online] Available from: https://www.equalpayportal.co.uk/the-law/ [Accessed on 08/10/2018]

Equality Act, 2010

Equity and Human Rights Commission. (2018) Protected characteristics. [online] Available from: https://www.equalityhumanrights.com/en/equality-act/protected-characteristics [Accessed on 07/10/2018]

Forum of Private Business. (2018) The Equality Act 2010: Protected Characteristics And Types Of Discrimination. [online] Available from: https://www.fpb.org/equality-act-2010-protected-characteristics-and-types-discrimination/ [Accessed on 07/10/2018]

Gov.Uk. (b). (2018) Business transfers, takeovers and TUPE. [online] Available from: https://www.gov.uk/transfers-takeovers [Accessed on 07/10/2018]

Health and Safety at Work Act 1974

Legislation .gov.uk. (2018) Terms And Conditions Of Employment. [online] Available from: https://www.legislation.gov.uk/uksi/2006/246/pdfs/uksi_20060246_en.pdf [Accessed on 07/10/2018]

O’Gallagher, M.K., Lewis, G., Mercieca, K. and Moutray, T., 2013. The impact of the European Working Time Regulations on Ophthalmic Specialist Training–a national trainee survey. International Journal of Surgery, 11(9), pp.837-840

Springboard Sunderland Trust v Robson [1992] IRLR 261

The Employment Rights Act 1996

The Money Advice Service. (2018) Your legal rights when facing redundancy. [online] Available from: https://www.moneyadviceservice.org.uk/en/articles/your-legal-rights-when-facing-redundancy [Accessed on 07/10/2018]

Toal and another v GB Oils Ltd UKEAT/0569/12

Undertakings (Protection of Employees) Regulations 2006

Williams, V. (2016) Celebrating Life Customs around the World: From Baby Showers to Funerals, Vol. 3. California: ABC-CLIO

Working Time Regulations 1998

XpertHR. (2018). What is “employee liability information” under the TUPE Regulations 2006? [online] Available from: https://www.xperthr.co.uk/faq/what-is-employee-liability-information-under-the-tupe-regulations-2006/114644/ [Accessed on 08/10/2018]