Employment Law (5ELW) GOSH Weekdays Tristan Callaghan.

Employment Law (5ELW)

GOSH Weekdays

Tristan Callaghan

1. Purpose of employment regulation and the way it is enforced

2. Manage recruitment and selection activities lawfully

3. Manage change and reorganisation lawfully

4. Manage issues relating to pay and working time lawfully

5. Ensure that staff are treated lawfully when they are at work

6. Manage performance and disciplinary matters lawfully

Learning Outcomes

• Employment law decisions – based on context

• Sometimes not a right/wrong answer in law – all about justification

• You will be challenged on unsubstantiated views without justification

• In employment law – if you don’t know the answer ‘do not guess’

• Employment law is a huge complex subject – we are not expected to remember every single aspect of it

• Always refer to sources

Approach and Principles

1.Understand the purpose of employment regulation and the way it is enforced in practice

1.1 Explain the aims and objectives of employment regulation

1.2 Describe the role played by the tribunal and courts system in enforcing employment law

1.3 Explain how cases are settled before and during formal legal procedures

Learning Outcome 1

1.Understand the purpose of employment regulation and the way it is enforced in practice

• Organisation constantly has ET claims

• Lack of framework of policies and procedures

• Pays people off rather trying to resolve disputes

• High turnover levels due to inconsistency in practice

• Recruits people as self-employed individuals

• Does not develop anyone over the age of 60

Case Study: Calamity Co.

• EDL leader’s friend refused to be served at Selfridges

• Employee suspended for violating company policy

• ‘Everyone was welcome in the store regardless of political opinion’

• The member of staff will not face any further action

• The assistant has worked at Selfridges for seven years

• Unblemished record and he accepts what he did was wrong

For consideration

Sources of Law

•Costly•Time consuming•Impacts on growth•Not business friendly•Deters ‘honest’ conversations and feedback

However….

Arguments Against Legislation

Purpose of regulation

Fairness in the workplace2

Enhance employment practices3

Attract overseas talent4

Avoid distortions in competition5

Social justice – protect employees1

EU Principles – Purpose/Laws

Covers: working conditions and information and consultation

Regulations (same across all states); Directives (guidance on principles) aims: • High level of employment social protection• Improved living and working conditions • Economic and social cohesion• Avoid distortions in competition

Legislation defines minimum requirements at EU level

The European Court of Justice or Human Rights settles disputes and interprets the law

EU Principles and Purpose of Law

EU Principles – Purpose/Laws

EMPLOYEES•Attend paid work on a regular basis •Controlled by managers/supervisors•Employer deducts tax/NI•Cannot use substitutes/helpers•Organisation provides equipment/tools•Subject to employer's procedures•Written contract of employment

WORKERS: casual, freelance, zero hrs•No obligation to offer work (or accept it)•Workers do work themselves•Organisation provides equipment/tools•Organisation deducts tax/NI

Employment status

SELF-EMPLOYED•Individuals pay own tax/NI on profits•Secure work through bids/invoices •Choose/control own work•Can hire another person/helpers •Not under direct supervision •Responsible for losses/correcting work•Do not receive holiday/sick pay •Provide own items/equipment/tools•May provide services to range of clients

Employment Rights of the individual Employee

Shareholder

Agency Worker (12

wks)Employee

Self-employed

Unfair dismissal N* N Y N

Statutory holiday/sick pay Y Y Y N

Accompanied at a disciplinary hearing Y Y Y N

Statutory redundancy payment N N Y N

Occupational pay (e.g. sickness/maternity) Y N Y N

Parental leave/request flexible working Y/N** Y/N*** Y N

Right to claim discrimination Y Y Y Y

Fixed-term protection Y N Y N

(*) unless a statutory unfair reason; (**) specific status – can not get it if expressly employed on this type of contract; (***) expressly provided for those returning from parental leave

Statutory protection

Employment Tribunals

• Claimant (employee) submits an ET1 & employer (respondent) an ET3

• Predominantly deals with unfair dismissal cases – other areas (not exhaustive) discrimination, harassment, breach of statutory right

• Less formal system to hear cases – application and hearing fee

• Can also hear wrongful dismissal (breach of contract) cases (up to £25k)

• 24 months service for unfair dismissal, no service for discrimination

• 3 months make the claim (6 months equal pay)

• Employment judge – can sit alone (or supported by two lay members)

• Systems of appeals – final appeal European Court of Justice (ECJ)/Human Rights (ECHR)

• Boxing Day 2011 Scarlets v Ospreys (rugby) at 14.05• Shaun Mackey, Store manager (DSG Retail), exits store through the rear

warehouse door 14.04. CCTV footage shows Mackey leaving the store, returning at 15.57

Investigation, dismissal and tribunal• Mackey claims he only attended the match during his lunch break • When shown CCTV claimed he had spoken to two colleagues on his return • None of the four witnesses supported his version of events • Dismissed (misconduct) on the basis of CCTV footage and witness evidence • Following failed appeal – Mackey won an employment tribunal claim for unfair

dismissal• Employment tribunal claimed – he was dismissed for lying rather than conduct

Employment Appeal Tribunal (EAT)• Determined dismissal was within a range of reasonable responses• Employer had lost trust and confidence in the employee due to his conduct• A tribunal cannot, and should not, substitute its view for that of the employer • Case remitted to a different employment tribunal.

Case Law

Settlement of Cases

Employers/employees may resolve amongst themselves through:

• Policies, procedures and processes

• ACAS - provide a range of services (e.g. advice, conciliation)

• Written settlement agreements

• Provide advice (codes/documents); conciliation & arbitration

• All ET1 and ET3 forms sent to ACAS – conciliation officers contact both parties

• Provide Alternative Dispute Resolution – decision made by an ACAS Arbitrator rather than an Employment Tribunal

• 1 April 2014 a pre-claim conciliation system – active involvement

Role of ACAS

• Legally binding

• Entirely voluntary – involve discussion and negotiation

• Waive the rights to bring a claim covered by the agreement

• Provision of a payment and a reference

• Both parties do not have to accept the terms initially offered

• Confidential - if agreement not reached, negotiations unlikely to be admissible as evidence

Source: Acas Guide to Settlement Agreements 2013 - http://www.acas.org.uk/media/pdf/o/a/Settlement_agreements_(the_Acas_Guide)JULY2013.pdf

Settlement Agreements

1. Purpose of employment regulation and the way it is enforced

2. Manage recruitment and selection activities lawfully

3. Manage change and reorganisation lawfully

4. Manage issues relating to pay and working time lawfully

5. Ensure that staff are treated lawfully when they are at work

6. Manage performance and disciplinary matters lawfully

Learning Outcomes

2. Know how to manage recruitment and selection activities lawfully

2.1 Identify the main principles of discrimination law in recruitment and selection and in employment

2.2 Explain how contracts of employment are established

Learning Outcome 2

2. Know how to manage recruitment and selection (R&S) activities lawfully

•Recruitment based on recommendations/networks•Lack of training for managers on R&S processes•Lots of verbal offers and promises made within the interview•Mistakes on adverts and recruitment documentation•Promotes positive discrimination to address imbalances•Probation periods put in for 18 months•No ‘checks’ on applicants

Case Study: Calamity Co.

Key Legal R&S Issues

Contracts of Employment 2

Agency Workers 3

Work Eligibility4

Fixed Term Contracts5

Discrimination 1

Data Protection 6

• Discrimination – Equality Act 2010

• Contracts of Employment – Employment Rights Act 1996

• Fixed Term Contracts - Employment Act 2002

• Agency Workers – Agency Workers Regulations 2010

• Work eligibility

- Protection of Freedoms Act 2012 (regulated activities adult/children)- Rehabilitation of Offenders Act 1974 (employing ex-offenders)- Immigration, Asylum and Nationality Act 2006

• Data Protection – Data Protection Act 1998

Key Legal R&S Issues

9 Protected Characteristics

•Age•Disability •Gender reassignment•Marriage and civil partnership•Pregnancy and maternity•Race•Religion or belief•Sex•Sexual orientation

Equality A

Key areas of the act

•Direct

•Indirect

•Perceptive

•Associative

•Pay secrecy

•Positive action

•Genuine Occupational Requirements

Equality Act 2010

Contracts are formed through an offer and acceptance

•Express Verbal Terms – what is said during the interview and other parts of the process such as negotiations after the selection process

•Express Written Terms – job adverts, job descriptions, person specifications, competency frameworks, promotional recruitment material/website, written statement of terms and conditions, offer letter

Contract of Employment

Statement of Written Terms and Conditions – within 2 months of start

date

Job title/role2

Date of commencement/continuous service3

Pay4

Working hours5

Name of employee/employer1

Location of work6

Notice period7

Collective agreements/misc. documents8

3. Know how to manage change and reorganisation lawfully

3.1 Describe when and how contracts can be changed lawfully

3.2 Explain the main requirements of redundancy law

3.3 Explain the main requirements of the law on business transfers

Learning Outcome 3

3. Know how to manage change and reorganisation lawfully

•Changes to contract made without consultation

•Staff bullied to accept changes

•Chooses staff based on length of service for redundancy

•Due to lack of funds about to make 30 redundant

•Will be outsourcing cleaning, catering and security to cut costs

Case Study: Calamity Co.

• Consulting on changes to contract (reasonable): consult, consider alternative roles, provide clear notice periods, collaborative – consider solutions or objections, consider additional learning and development, can offer representation (not a legal requirement)

• Circumstances in which a contract can be varied (justification): new technology, new location, downturn in the business, customers needs, changes in market, legislation, expansion

Variation of Contract

Redundancy Considerations

Pay/Notice2

Redeployment3

Volunteers4

Trial periods5

Consultation 1

Outplacement/Looking for another job6

• Genuine Redundancy: (1) cessation of a business/ part of the business; (2) business relocated; (3) particular job has ceased

• Avoid discriminatory practice e.g. length of service decisions could be age discrimination

• Collective consultation time period 20+ people 30 days; 100+ people 45 days

• Valid and reliable selection criteria – absences, performance, experience, skills, targets

• Alternative employment – need to consider if the individual has the skills (or with training)

• Consider the legislation/policies

• Pay: under 22 (0.5 x each year of service); 22-41 (1 x service); 41+ (1.5 x service) – 2 yr service

• Outplacement/skills training/ time off to look for a job interview (need 2 yrs service)

• Voluntary redundancy

• Trial periods – up to 4 weeks

• Representation – collective consultation – if no reps must elect staff reps

Redundancy

What constitutes a Transfer

Transfer following Administration2

Sale of business3

Outsourcing/tendering4

Change of franchise5

Mergers/Takeovers 1

Gift – execution through a will6

• All terms, conditions and liabilities (e.g. unfair dismissal claims) transfer

• Criminal liabilities and occupational pensions do not transfer

• Must provide similar pension arrangements

• Consultation: Confirmation of the transfer

o Reasons for the transfer

o Date the transfer will take place

o Impact on affected employees

o The measures that both transferor and transferee will undertake

Transfer requirements

Dismissals connected with the transfer, automatically unfair unless it is for:

• Economic reasons – redundancy, cannot afford to take all on

• Technical reasons – different skills sets

• Organisational reasons – location is not practical

TUPE: ETO Reasons

4. Know how to manage issues relating to pay and working time lawfully

4.1 Identify the major statutory rights workers have in the fields of pay, leave and working time

4.2 Explain the major requirements of equal pay law

4.3 Explain major maternity, paternity and other family-friendly employment rights

Learning Outcome 4

Working Time Regulations - Adults

Break 20 mins every 6 hours2

11 hours rest every 24 hours3

28 days annual leave a year4

Night working (8 hours)5

Max 48 hour working week (opt out)1

EU Working Time Directives

Statutory Rights - Pay

Worker Employee

National minimum wage Y Y

Paid annual leave Y Y

Unlawful deductions from wages Y Y

Statutory redundancy payment Y

Occupational maternity, paternity and adoption pay Y

Itemised pay statement Y

Occupational sick pay Y

• Written pay statement – including breakdown and deductions

• Statutory pay – maternity/paternity/adoption/sickness

• Pay during lay-offs – 5 days statutory pay in any 3 month period; or redundancy – if for 4 consecutive wks/6 wks in 13 week period

• Holiday pay – 28 days

• National minimum wage – includes basic, incentives/bonuses and accommodation

• Equal pay…

Statutory Rights - Pay

Equal Pay

• Right to be paid the same for:

like work (same/similar) work rated as equivalent (different but same grade) work of equal value (completely different but same inputs)

• Claims: 6 months employment tribunal; 6 years court system

• Tribunals can decide on the following:

Equalisation of terms and conditions 6 years arrears of pay Future actions and recommendations to enhance practices

• Flexible working – right to request, particularly for people with children under 17 (or if disabled 18), however people looking after dependents of any of age have the right, need to consider, process involved. Maximum 1 request every 12 month. 26 weeks service needed.

• Maternity – SMP: 6wks 90% average salary+33wks £136.78pw. Statutory Leave: 52wks (26wks “Ordinary Leave”+26wks “Additional Leave”) – legal requirement to take 2wks. Notice: SMP: 28days before payments start, SML: 15wks before expected week of birth. Have to give proof for SMP (MATB1 Form). 8 wks notice to change date of return. Rights: Accrue annual leave, bank hols, eligible for annual pay reviews, 10 KIT days (no more or SMP is forfeit). Time off for ante-natal appointments

• Paternity – 2wks ordinary paternity leave + 26wks additional leave (if mother goes back to work); SPP same as full SMP; OPL can start from day baby born and must end 56 days from birth; APL can start from 20 weeks up to baby’s 1st birthday; to take paternity leave must provide MATB1 and prove responsibility of baby (e.g. father, mother’s partner), and have 26 wks continuous service by 15wks before expected date of birth

• Parental leave/ time off for dependents – children under the age 5 (18 if disabled) total of 18 weeks unpaid leave for each child (per parent); maximum 4 weeks a year. Need 1 year service. Employers can refuse but must be valid reasons (eg. Service requirements or transfer from one employer to the next). Emergencies unpaid leave

• Adoption – same as maternity/parternity

Family Statutory Rights

5. Be able to ensure that staff are treated lawfully when they are at work

5.1 Identify the major requirements of health and safety law

5.2 Explain the significance of implied duties as regards the management of employees at work

5.3 Explain the principles of the law on freedom of association

Learning Outcome 5

5. Be able to ensure that staff are treated lawfully when they are at work

•No health and safety training for staff•Constant complaints of bullying/strong management practices•Implied duty for employees to look after themselves•No risk assessments undertaken•Current dispute lasting 6 weeks – employer not to bothered•Previously dismissed employees after 12 weeks of industrial action•Strikers barred from striking anywhere near the workplace•Some strikers have encouraged van drivers of suppliers to strike

Case Study: Calamity Co.

• Both employers and employees responsible for H&S

• Protection of vulnerable: pregnant and young employees

• Employers need to assess, monitor and alleviate risk

• Need for H&S policy and training

• Right to join a trade union

• Right not to be discriminated due to (non) trade union membership

Lawful Treatment at Work

Employers duty to provide:

1.a safe place of work;

2.a safe system of work;

3.adequate plant and equipment;

4.employees who are aware of their duties

Health and Safety EU/UK

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

• Appointment of and consultation with H&S representatives

• Appointment of a person to undertake risk assessment

• If requested, establishment of a H&S committee

• Undertake regular risk assessments

• Educating and training of staff

• Provision of resources to reduce risk

Employer’s Obligations

• duty to provide a secure, safe and healthy environment (free from intimidation, harassment, bullying)

• duty of trust to each other

• employee duty to obey any reasonable instructions

• employee has a duty to adapt

• duty of the employer to pay wages and provide work

Implied Duties

• Right to freedom of association to join a trade union

• Recognition can be voluntary or statutory (through Central Arbitration Committee)

• Statutory recognition - 21 workers. If fewer than 50% of workers are members - ballot will take place (40% turnout)

• Trade unions can: bargain; represent staff; make collective agreements; undertake official industrial action, have the right be consulted

Freedom of Association

6. Know how to manage performance and disciplinary matters lawfully

6.1 Explain the main requirements of unfair dismissal law in respect of capability and misconduct issues

6.2 Explain the scope of the right for employees to be accompanied at serious discipline and grievance hearings

Learning Outcome 6

Capability and Misconduct Issues

Capability issues: poor performance, health

Misconduct issues: stealing, dishonesty, refusal to accept a reasonable instruction, company in disrepute, sexual harassment, bullying, not following procedure, not reporting H&S hazards, coming into work drunk, not ‘whistleblowing’

Fair reason for dismissal

Capability2

Redundancy 3

Statutory restriction4

Some other substantial reason5

Misconduct 1

1. Security Guard – HMV2. Chased a shoplifter3. Caught shoplifter4. Called police5. Dismissed

Click here to find out further information

Fair Dismissal?

Fair Dismissal -Expectations of Employers

Reasonableness• Get records of the incident – find out the facts including witness statement

• Investigation interviews – gaining information from the individual

• Consider previous performance, length of service and mitigating circumstances (medical report)

• Ensuring policy and procedure is adhered to and the individual is aware of the policy/impact

• Collate additional evidence e.g. training records, signed awareness statements

• Provide right to representation at formal hearings (good practice in investigation)

• If organizing a formal hearing – provide adequate time to read the case and organize representation

• Make a decision based on the facts – reasonable and justified decisions

• Provide appeal

• Ensure ACAS code of practice is adhered to

Justification• Impact on the business (e.g; reputation, profits, income) and/or the health of safety of the individual and

others

• Openness, fairness and transparency

• Right to a fair hearing

• Right not to be unfairly dismissed

• Right to representation at formal hearings

• Right to appeal

• Right to raise a grievance

Legislative Principles

• By trade union rep or work colleague

• Formal meetings

• Represent the individual, support and advice not speak on their behalf

Right to be Accompanied

Key legislation

• Growth and Infrastructure Act 2013• Employment Rights Act 1996 • Equality Act 2010 • Agency Workers Regulations 2010• Trade Union and Labour Relations Consolidation Act 1992• Employment Rights Act 1996• Working Time Regulations 1998 • National Minimum Wage Act 1998• Part-time Workers (Prevention of Less Favourable Treatment Regulations) 2000 • Employment Rights Act 1996• Work and Families Act 2006• Transfer of Undertakings (Protection of Employment) Regulations 2006• Employment Relations Act 1999 • Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002• The Collective Redundancies (Amendment) Regulations 2006• Health and Safety at Work etc Act 1974• Enterprise and Regulatory Reform Act 2013

Conclusions

To help your learning and understanding provide key conclusions/learning points from the session

1.?2.?3.?4.?5.?6.?

Consider areas for further development