Legal System
Aims and Objectives of Employment Regulation
Fairness is one of the core objectives of employment regulation. It is pertinent that employers demonstrate fairness by providing equal opportunities and equal pay for the people they hire. For instance, the Race Relations Act of 1976 is intended to ensure that no individual is discriminated against because of their race, gender, or sexual orientation (Fell and Dyban, 2017). Other pieces of legislation designed to ensure fairness include the Disability Discrimination Act of 1995 and the Sex Discrimination Act of 1975 (Fell and Dyban, 2017). The law ensures that each individual seeking employment is treated fairly and is accorded equal opportunities.
Employers are tasked with providing a safe and conducive work environment, especially in situations where individuals are exposed to complex machines, toxic substances, or risky conditions. Employment regulations are designed to ensure that employees are protected from potential injury or the loss of life while at work. These laws are crafted to ensure that employers are held accountable for the wellbeing of the people they employ while at work. For instance, the Health and Safety at Work Act is the foundation upon which employee protection guidelines at the workplace are built. It stipulates that employers must document workplace accidents and outlines stiff penalties for individuals or organizations that ignore safety requirements. This ensures that adequate compensation is offered to injured individuals and due process is followed when investigating the incidents.
Employment regulation ensures that justice prevails in so far as employee and employer relationships are concerned. The most effective way of ensuring that grievances are addressed is by forming and joining labor unions. The law, through the labor law, ensures that the right to participate in a concerted activity is protected. As such, employers are prohibited from interfering with their workers’ quest to seek better working conditions, fair pay, or better benefits through a self-directed association of employees.
The Tribunal and Courts System in Employment Law Enforcement
Employment tribunals are institutions created to handle claims brought forth by employees against their employers. The issues raised include unfair dismissal, discrimination, wage deduction, and unequal pay. It is vital to note that when these institutions were first established, they were intended to be a speedy and inexpensive way of addressing employee disputes. However, the complexity of employment legislation has necessitated the inclusion of intricate processes and procedures. Therefore, even though it is not a requirement for employees and employers to have legal representation, many choose to have a lawyer present during hearings. Tribunals are primarily designed to deal with contractual disputes as well as enforce statutory rights. Some of the disputes addressed by tribunals include work-related accidents, failure to pay wages, and restrictive covenants.
In the court system, employment law is categorized as private law. Therefore, its enforcement is based on an affected party’s decision to sue another for compensation or a specified remedy in a civil court. The wronged individual may be an unsuccessful job applicant, a former employee, or a current employee who uses the court system to allege that their employer has caused harm and, in doing so, contravened the law. Therefore, the courts provide an avenue through which justice is administered to individuals who have been victimized by rogue employers.
Settling Cases Before or During Formal Legal Procedures
A significant number of employment disputes are settled using a defined method of negotiated compromise. In some instances, the employer and the employee may resolve the dispute prior to the commencement of formal proceedings. This commonly occurs when the employer responds to an employee’s informal complaint or addresses issues raised in a demand letter presented by the worker’s lawyer. Some of the reasons parties may seek redress before the start of formal proceedings include high legal costs, the risk of an unfavorable verdict, concerns regarding witness welfare and safety, and the possibility of deterring focus on the business.
It is vital to note that the beginning of formal proceedings does not eliminate the possibility of settlement. For instance, an agreement may be reached after initial investigations have been conducted, but the formal discovery process is yet to start. Other instances include when documents have been presented, but depositions have not been taken, after the close of discovery but before the trial begins, and on the courthouse steps before the trial commences. Reaching an agreement before the trial is concluded is, on some occasions, the best option for all the parties involved.
Avoiding Discrimination
The Principles of Discrimination Law during Recruitment, Selection, and Employment
The protection of individuals from discrimination at the workplace is a vital function of employment legislation. The Equality Act of 2010 demonstrated a concerted effort to eradicate discrimination in a variety of social settings. It was designed to address social and economic disparities in view of the fact that discriminatory practices can cause significant distress. It outlines specific protected characteristics which employers must consider when offering jobs to individuals. These are disability, age, marriage, gender reassignment, pregnancy, sex, race, and religion (Fell and Dyban, 2017). Direct discrimination refers to the unfair treatment of an individual because they possess a specific characteristic while indirect discrimination refers to situations where a specific policy impacts specific individuals more than others. It is vital to note that all forms of discrimination must be eliminated in the business premises.
The law stipulates that during recruitment, it is illegal to discriminate on the basis of a protected characteristic. In addition, employers are expected to make specific adjustments to cater to the needs of disabled individuals during the recruitment process. The Equity Act of 2010 encourages employers to target their recruitment efforts towards disadvantaged or underprivileged groups. It is vital to note that giving an employment agency a specific set of guidelines that promote discrimination is illegal. If the instructions are implemented both the agency and the employer are liable.
It is vital to note that the law prohibits employers from implementing criteria that may result in indirect discrimination among individuals during the selection process. In addition, it is not permissible to ask individuals questions regarding their health and disability prior to making them a job offer. The law ensures that individuals with genuine disabilities are protected, and their issues are factored into their roles and duties within the business establishment.
As an employee, the Equality Act protects individuals with any form of disability from discrimination at their places of work. Any condition that creates challenges with regard to the completion of regular activities is deemed a disability. Affected individuals may experience challenges getting out of bed, may be susceptible to forgetfulness, and may encounter difficulties planning for activities as a result of prolonged depression. Therefore, if an employer treats an employee with the aforementioned condition unfavorably, such an act is considered discriminatory
Contract Law
Establishing Contracts of Employment
A contract of employment is delineated as a legally binding agreement between an employee and an employer. Contracts have specific elements which are governed by contract law. For instance, an offer of employment refers to the employer’s desire to offer an individual the opportunity to work. The document must state all the terms and conditions clearly, and may be conditional. Acceptance refers to the employee’s willingness to agree to the outlined terms, while consideration between parties refers to the benefits which must be agreed upon by the involved parties. For instance, the amount of money an employee will earn in return for work done. Finally, the intention to create legal relations refers to the fact that the involved parties purpose to participate in a legally binding agreement where specific obligations and rights are enforceable.
Contracts include a mixture of implied and express terms in their structure. Express terms refer to words that are written in the document or stated verbally. The terms must adhere to the relevant laws governing contractual agreements such as employee status, minimum wage, equal pay, flexible working, working hours, and parental leave. It is vital to note that express terms must comply with specific minimum legal standards, such as the right to get breaks and get paid holidays. Implied terms may not be written down but may be incorporated in collective agreements, workforce agreements, or included in statutes. Examples of implied terms include the requirement to maintain trust between the employer and the employee or the employer’s duty to provide a safe work environment. It is vital to note that most of the terms in a contract must be written down to limit the frequency of disputes between the employer and their employees.
Lawfully Changing Contracts
Changing a contract’s terms usually requires agreement between the involved parties. While some minor issues may be altered without the employee’s consent, most contractual elements are impossible to alter without their involvement (Scottish Law Commission, 2018). Organizations must be careful when attempting to alter contractual elements because changes that amount to a breach of contract may result in resignations or the presentation of a tribunal claim. It is vital to note that in some instances, a contract may include an express term, often referred to as a flexibility clause, which stipulates that specific elements can be changed by the employer. However, despite the presence of such terms, it is seldom the case that the employer will vary terms to the employee’s detriment without express consent from the worker.
Organizations intent on altering contractual terms have some available options. First, they can agree to the alterations with the employee after comprehensive consultations. In most cases, the employer offers some incentive to the employee to facilitate success. Secondly, organizations may make unilateral changes to contracts, especially when prevailing business conditions necessitate adjustments. There is some risk unilaterally changing contractual terms because employees may initiate proceedings for breach of contract, they may resign or claim unfair dismissal from their workplace. Finally, employers may terminate contracts by notice and offer novel opportunities based on new conditions. This is a suitable option where unilateral changes are difficult to implement or where agreements have not been reached (Scottish Law Commission, 2018). It is vital to note that contract law considers the aforementioned action a redundancy dismissal which means employers must adhere to the rules governing collective redundancy as well as consultation time limits. While employees have the right to claim breach of contract or wrongful termination, potential compensation will be limited in view of the fact that the employer offered re-engagement terms. All contractual changes must be confirmed in writing soon after the changes take effect.
Organizational Change
The Requirements of Redundancy Law
Redundancy refers to the termination of an employee’s contract when the employer intends to cease doing business, or the position for which the employee had been chosen has ceased or diminished. It is vital to note that the employer must follow specific steps, which include making notice and redundancy period payments. When employers do not adhere to the law, they are likely to face unfair dismissal suits or protective awards. The law prohibits employers from making employees redundant because of trade union membership, status as a part-time employee, and maternity-related conditions. Section 146 of the Trade Union and Labour Relations Act 1992 protects employees from being targeted as a result of union membership or engagement in union activities (UNISON, 2017). In addition, the Equality Act 2010 expressly prohibits employers from effecting redundancy because of an individual’s sex, gender, race, age, religion, marital status, or disability (O’Brien, 2020). This is meant to protect employees from unfair and ill-intentioned dismissals.
There is a strict procedure to follow when enforcing redundancy in an organization. Organizations must begin by planning which involves identifying viable alternatives to redundancy. These include natural wastage, reducing overtime, offering early retirement to volunteers, or short-time working arrangements. The next step involves the identification of a pool for selection. The individuals chosen must have a similar set of skills, be engaged in a specific department, and their work has ceased or is expected to reduce significantly. The employer must then seek volunteers to try and avoid compulsory redundancies. It is vital for organizations to consult their workers and warn them of potential redundancy. These consultations must be meaningful and should be covert by contractual policies and terms. The Employment Rights Act 1996 stipulates that the employer must show the reasons for dismissal and that they must fall within the listed categories (O’Brien, 2020). The employer must give legitimate reasons for redundancies, the number of people they intend to dismiss, the selection method applied, and the method used to determine redundancy payments.
After consultations are complete, the employer must choose individuals from the identified pool. The selection must be objective and must consider factors such as length of service, disciplinary history, attendance, work experience, and performance. The employer is expected to offer selected employees suitable alternative employment. The employer must give its workers written notice informing them that they are at risk of redundancy. The law allows employees to appeal against redundancy decisions.
Requirements of the Law on Business Transfers
A transfer of undertaking refers to a change in service provision or a business transfer. The Transfer of Undertakings Protections of Employment 1996 Act (TUPE) was created to protect employees when a transfer undertaking is implemented, and there is a shift in the organization’s ownership (Advisory Conciliation and Arbitration Service, 2021). The law applies in business transfers where the economic entity does not change its identity. Some of the situations in which TUPE applies include mergers, changes in licensees or franchisees, the sale of business assets, and a change of contractors. It is vital to note that there are specific situations in which the TUPE law does not apply. For instance, it is not applied in transfers by share take-over, in situations where only the assets are transferred, or in transfers of undertakings that take place outside the United Kingdom.
It is vital to note that TUPE transfers are complex transactions that may require the input of a legal professional. Employers must identify all the risks and engage their employees in constructive discussions. It is critical to ensure that the employees’ current terms and conditions are maintained by the new owners. The transferee must accept all liability for statutory rights and all liabilities and claims that arise from contracts of employment. In the event an employee is dismissed as a result of a transfer, the dismissal is automatically considered unfair. Employee and trade union representatives must be included in discussions regarding transfers (Advisory Conciliation and Arbitration Service, 2021). They are expected to ensure employee rights are observed, including the continuity of pension schemes for institutions that provided the benefit for their workers. Finally, the transferor must give the new business owner written information on the employees’ rights and obligations.
Worker’s Rights
Statutory Worker Rights in the Fields of Pay, Leave, and Working Time
The Working Time Regulations of 1998 govern working hours within the United Kingdom. According to the law, 48 hours constitute a working week, while eight hours are considered a complete working day (Chartered Institute of Personnel and Development, 2021a). In addition, employees are entitled to 11 hours of rest a day, a day off each week, a break during the day in situations where the workday is longer than 6 hours, and 28 days of paid leave (Chartered Institute of Personnel and Development, 2021). According to the Health and Safety Act of 1974, employees are required to protect their employees from excessively long hours and overworking (Caponecchia and Wyatt, 2021). This is vital for the improvement of productivity and human welfare.
The law creates specific provisions with regard to employee pay in organizations. The Equality Act 2010 stipulates that both men and women have the right to equal pay for similar work (O’Brien, 2020). Employers found guilty of pay discrimination must conduct pay equal audits and publish the findings on their websites. It is vital to note that all employees have the right to receive written itemized pay statements indicating how their salaries have been disbursed.
Numerous laws have been passed in the UK to safeguard employees from exploitation with regard to leave. The Employment Act 2002 advocates for family-friendly working conditions, which outline the requirements for statutory maternity leave. Employees are entitled to six months of paid maternity leave and an additional six months of unpaid leave (Fagan and Rubery, 2018). In addition, employees are allowed two weeks of paternity leave and a minimum of 28 days of paid annual leave (Fagan and Rubery, 2018). Employers must adhere to these conditions or face legal action.
Equal Pay Law
Concerns regarding pay inequality prompted the UK government to pass legislation aimed at ensuring pay equality in the workplace. The Equality Act of 2010 outlines specific conditions that employers must meet with regard to pay (Chartered Institute of Personnel Development, 2021b). Both sexes are entitled to the same pay when they are carrying out work or work considered to be equivalent. The latter refers to situations in which employees are engaged in broadly similar roles, while the former refers to jobs deemed equal by a job evaluation study. Finally, work of equal value refers to scenarios in which two different jobs require the same level of ability and skill.
The Equality Act also stipulated laws that relate to clauses on pay secrecy. The law dictates that pay secrecy laws in an employment contract are deemed unenforceable. In addition, employees must not be barred from discussing their pay within the institution. Employers are allowed to demand that their employees keep their pay a secret when outside work. Organizations are prohibited from paying employees less than the required amount on the basis of race, religion, or disability. It is vital to note that the conditions of employment must be similar for both women and men in any organization.
Maternity, Paternity, and Other Family-Friendly Employment Rights
The law outlines specific requirements with regard to maternity, paternity, and other family-friendly employment rights. The passing of the employment Act 2002 included key changes such as an increment in the rate of statutory maternity pay and allowances. In addition, the maternity period was increased, and employees are entitled to two weeks of paid paternity leave. It is vital to note that the additional two weeks do not interfere with the existing thirteen weeks of parental leave that each employee has a right to claim. The act allows parents with children younger than six years or children with disabilities to request flexible working hours. The family-friendly employment rights are intended to encourage dialogue between employers and parents to allow them to meet childcare responsibilities as well as the organization’s economic needs.
Employers have the right to reject family-friendly employment rights under specific circumstances. These include situations where the request could alter product quality or result in detrimental performance. In addition, the request can be denied if the organization is planning structural changes, the employer is not in a position to recruit additional staff, or is unable to reorganize work among employees. The aggrieved individual can file a complaint with the employment tribunal provided they have proof that their employer failed to comply with statutory procedures.
The Requirements of Health and Safety Law
The law requires employers to provide a safe work environment, offer a safe and reliable system of work and provide adequate equipment for the completion of tasks. In the event an employer is incapable of meeting the aforementioned conditions, the employee has the right to file a variety of claims. The employer’s responsibilities are enshrined in the Health and Safety Work Act 1974, which outlines the requirements for employee health safety and welfare while at work (Almond and Esbester, 2018). The law states that the employer institutes all reasonably practical solutions to avoid accidents and ensure an employee’s mental health is preserved. This must be accomplished by carrying out risk assessments and take sufficient precautions to prevent injury.
The law further stipulates additional measures that organizations must take to ensure employee safety. For instance, employers must publish health and safety regulations, appoint health and safety representatives and establish a health and safety committee. These measures are intended to protect employees from injury and facilitate the implementation of interventions in the event of an accident. It is also a requirement that the organization will employ a competent individual to assess risks and hazards and inform employees about all the institution’s safety measures. It is vital to note that employees are required to adhere to the stipulated health and safety protocols established by the institution.
Implied Duties as Regards the Management of Employees at Work
General terms refer to duties that are implied in an employment contract. Some of the terms include the employer’s duty to provide a safe and secure work environment. It is also expected that the worker will trust their employer and avoid sharing confidential institutional information. The employee is expected to obey reasonable instructions from the employer-provided they facilitate the achievement of the organization’s legal objectives. It is the employee’s duty to adapt to the business environment and make the best of available opportunities. The law expects employers to pay wages and provide work for their employees. It is vital to note that implied terms must not vary in view of the fact that most of them are underpinned by employment statutes. In situations where employers make management decisions, they must conduct comprehensive consultations and provide justifiable reasons for the proposed actions. They must offer their employees technical, economic, and organizational explanations that align with the TUPE guidelines.
The Principles of the Law on Freedom of Association
The law guarantees employees the right to assemble and advocate for their rights. Article 11 of the Human Rights Act 1998 stipulates that every individual has the right to assemble peacefully and associate with others to form trade unions (Equality and Human Rights Commission, 2021). In addition, the law states that no restrictions must be imposed on the exercise of these rights other than those outlined in legislation for the prevention of criminal activity. It is vital to note that the article does not prevent the enforcement of lawful restrictions on the exercise of the aforementioned freedoms should they pose a threat to the general public and private property.
The right of employees to associate and form unions to address emergent issues is protected in the law. The Trade Union and Labor Relations Act outlines the right of employees to engage in collective bargaining and consultation in the face of redundancy procedures. Therefore, employers are prohibited from blocking meetings and other measures designed to unionize their employees. It is illegal to victimize workers as they champion better working conditions, equal pay, or benefits. The statute also provides a platform on which aggrieved employees can raise claims for compensation or legal action against employers found guilty of breaking the law.
Dismissal
Unfair Dismissal Law in Respect of Capability and Misconduct Issues
It is vital to note that employees have a statutory right against unfair dismissal. Capability issues arise when the ability to carry out tasks is brought to question while misconduct issues are highlighted when the employee’s behavior is considered unprofessional. The Advisory Conciliation and Arbitration Service (ACAS) outlines procedures that must be followed during dismissal. Concerning misconduct issues, ACAS notes that different individuals should conduct both the investigation and disciplinary hearing (Advisory Conciliation and Arbitration Service, 2015). After an individual is suspended for inappropriate behavior, an investigation is conducted, a disciplinary hearing is held and the affected individual is accorded the right to appeal. It is vital to note that when addressing capability issues, the employer must focus on employee improvement. This is accomplished through the provision of training, support, and the implementation of specific changes in the workplace. In addition, performance appraisals, coaching, and mentorship facilitate the development of specific skills.
The Employment Rights Act 1996 stipulates that employees have the right to fair treatment. The employer is tasked with the responsibility of proving that the dismissal was fair and the reason was justified. Fair dismissals must meet specific criteria to be considered legal. The five fair reasons for dismissal include misconduct, capability, redundancy, statutory illegalities, or a substantial reason that can be defended in court. Constructive dismissal refers to a situation where an employee is forced to leave their job as a result of the employer’s conduct. Reasons for constructive dismissals include sudden and unexplained demotions or nonpayment of salaries.
Serious Discipline and Grievance Hearings
It is vital to note that employees have a statutory right to be accompanied for serious disciplinary or grievance hearings. These include situations where a formal warning has been presented to the employee, the employer has decided to take disciplinary action, or during an appeal hearing (Advisory Conciliation and Arbitration Service, 2015). Employees must be given ample time to prepare their defense and to choose an individual to accompany them during the proceedings. The law stipulates that employees can be accompanied to hearings by a colleague, an official appointed by a trade union, or a union representative. The employer must accept the worker’s request to be accompanied during hearings. It is vital to ensure that the request is reasonable and takes into consideration the prevailing circumstances (Advisory Conciliation and Arbitration Service, 2015). There are no time restrictions for an employee’s request to be accompanied in any of the aforementioned scenarios. The law creates a provision for the employee’s companion to sum up, the case and respond on the worker’s behalf when addressing pertinent issues about the case.
Reference List
Advisory Conciliation and Arbitration Service (2015) Code of practice on disciplinary and grievance procedures | Acas.
Advisory Conciliation and Arbitration Service (2021) Handling a TUPE transfer.
Almond, P. and Esbester, M. (2018) ‘Regulatory inspection and the changing legitimacy of health and safety, Regulation and governance, 12(1), pp. 46–63. doi: 10.1111/rego.12155.
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Chartered Institute of Personnel and Development (2021a) Working hours & time off work.
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O’Brien, S. B. (2020) ‘Reasonable responses versus proportionality in employee dismissal cases : A comparison between the Employment Rights Act 1996, s 98(4) and the Equality Act 2010, s 13(2), s 15(1)(b), and s 19(2)(d).’, The Student Journal of Professional Practice and Academic Research, 2(1), pp. 1–86.
Scottish Law Commission (2018) Report on Review of Contract Law: Formation, Interpretation, Remedies for Breach, and Penalty Clauses.
UNISON (2017) Trade Union Victimization.