Employment Laws: Regulations, Contracts, Discrimination, and More

This article provides an overview of the employment laws in the UK, covering different aspects such as regulations, contracts, discrimination laws, and more. It discusses the role of tribunal and court system, settlement of cases before and during formal legal procedure, managing recruitment and selection activities, requirements of redundancy law, and managing pay and working time. The article also highlights stakeholder rights in the field of pay, leave, and working time, and the equal pay law.

EMPLOYMENT LAWS
Table of Contents
Introduction......................................................................................................................................2
Purpose of employment regulation..................................................................................................2
Aims and objectives.....................................................................................................................2
Role of tribunal and court system................................................................................................2
Settlement of cases before and during formal legal procedure....................................................2
Managing recruitment and selection activities................................................................................2
Discrimination laws.....................................................................................................................2
Employment contracts.................................................................................................................2
Managing change and reorganization..............................................................................................2
Manner of changing contracts.....................................................................................................2
Requirements of redundancy law................................................................................................2
Requirements on business transfers.............................................................................................2
Managing pay and working time.....................................................................................................2
Stakeholder rights in field of pay, leave and working time.........................................................2
Equal pay law..............................................................................................................................2
Key maternity, paternity and other employment laws.................................................................2
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Treating staff lawfully.....................................................................................................................2
Requirements of health and safety law........................................................................................2
Implied duties regarding management of employees..................................................................2
Freedom of association................................................................................................................2
Managing performance and disciplinary matters............................................................................2
Unfair dismissal regarding misconduct and capability................................................................2
Employee right to be accompanied at serious discipline and grievance hearings.......................2
Bibliography....................................................................................................................................2
Primary Sources...........................................................................................................................2
Cases........................................................................................................................................2
Statutes and statutory instruments...........................................................................................2
Secondary Sources.......................................................................................................................2
Books.......................................................................................................................................2
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Introduction
The employment law of UK is encompassed with a group of legislation which is combined
together and which regulate one or the other aspect of the employment. It includes the different
legislations like the Working Time Regulations of 19981, Equal Pay Act of 19702, Employment
Rights Act of 19963 and Equality Act of 20104. The employment law basically governs the
relationship during the employment of an employee with their employer. The employment laws
also help in regulation of the rights of the employees and also of what can be reasonably
expected by the employer from the employee5. The following parts cover a discussion on the
different aspects of employment law of the nation, particularly which are crucial for human
resource personnel.
Purpose of employment regulation
Aims and objectives
The key aim or the objective of the employment law is to make certain that each person in the
workplace is treated in a manner which can be deemed as fair and reasonable. Another purpose
of the employment law is to make certain that the people are treated on the basis of principles of
natural justice6.
1 Working Time Regulations, 1998
2 Equal Pay Act, 1970
3 Employment Rights Act, 1996
4 Equality Act, 2010
5 Simon Honeyball, Honeyball & Bowers' Textbook on Employment Law (14th edn, Oxford University Press 2016)
6 Kathy Daniels, Employment Law: An Introduction for HR and Business Students (3rd edn, Chartered Institute of
Personnel and Development 2012)
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Role of tribunal and court system
Employment law is majorly covered under civil law and when it comes to disputes relating to
employment laws, they are initially referred to the Employment Tribunals. Even though the
hearings of Employment Tribunals are informal in comparison to the higher courts, they are still
deemed as courts of law. The decision of employment tribunals can be appealed on point of law
to the Employment Appeals Tribunal. The appeals from Employment Appeals Tribunal can be
made to the Court of Appeal and from there they can be made to the Supreme Court, which is the
highest appeal court of the nation. Even though Brexit has been passed, it still has to be adopted,
and till that is done, UK continues to be a member stated of European Union. Due to this, the
decisions from the courts of UK can be referred to the European Court of Justice7.
Settlement of cases before and during formal legal procedure
Introduced on April 06th, 2014 and made mandatory on May 06th, 2014, the Employment
Conciliation Scheme helps in reducing the claims with go to the Employment Tribunal. Without
being engaged in this scheme, an employee cannot make a claim to the Employment Tribunal.
Under this scheme, the claimant is contacted by Early Support Conciliation Officer and details of
the claims are sought and the claimant is asked about conciliation process8.
Where a solution cannot be attained through the use of this scheme, the application can be made
to the Employment Tribunal after which the ACAS contacts the employee and employer to
facilitate a settlement, as is done under the Early Conciliation Scheme. ACAS simply mediates,
instead of giving advice to the party. Negotiations have been introduced in this process through
7 Hugh Collins, Employment Law (2nd edn, Oxford University Press 2010)
8 Elizabeth Aylott, Employment Law (Kogan Page Publishers 2014)
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Enterprise and Regulatory Reform Act, 20139. It is important that care is taken while putting up a
settlement agreement as can be emphasized through Newbury v Sun Microsystems10, where the
court held that the offer containing settlement sum was binding as the same covered enough
details for someone to agree to the terms after understanding them.
Managing recruitment and selection activities
Discrimination laws
Discrimination is giving someone more or less preference on the basis of some specific attributes
of such individual. The Equality Act, 2010 prohibits seven different types of discrimination, i.e.,
direct, indirect, perceptive, associative, harassment, third party harassment and victimization.
This act provides nine protected characteristics for making a claim of discrimination and these
include age, sex, race, religion/ belief, disability, gender reassignment, sexual orientation,
maternity/pregnancy, and marital status/ civil partnership. It is crucial that discrimination does
not take place in recruitment and selection process11. Apart from the UK laws, the EU law of
Equal Treatment Directive 2006/54/EC restricts discrimination and requires equal opportunity to
be provided to all individuals12.
Direct discrimination takes place when a person is treated in a less favourable manner than other
person as a result of their protected characteristic. In Amnesty International v Ahmed13, amnesty
international had not selected a candidate for a position in Sudan region as they feared for her
9 Enterprise and Regulatory Reform Act, 2013
10 [2013] EWHC 2180
11 At 6
12 Equal Treatment Directive 2006/54/EC
13 [2009] IRLR 884 EAT
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life. Even though this was a good motive, the EAT held that there had been a direct
discrimination.
Indirect discrimination takes place when certain rule, practice or policy is applicable on everyone
but comes with worse effect for certain people in comparison to others. In R v Secretary of State
ex parte Equal Opportunities Commission14, the case was brought against the government by
EOC. The employees who had worked full time at that time, for brining unfair dismissal claim,
were required to have two years’ service. This issue raised an indirect discrimination claim by
the EOC as women would face difficulty in making a case of unfair dismissal as they are more
like to be employed part time to take care of their children and on an average would have to
serve longer than men. Due to these reasons, the claim of indirect discrimination was upheld.
Perceptive discrimination refers to discrimination owing to the thought that someone holds a
particularly protected characteristic, even when they may not have it. Associative discrimination
relates to discrimination against a persona as a result of their association with a person having
protected characteristic. In Coleman v Attridge Law15, requests were made for flexible working
pattern by Coleman as her son was disabled. She made an argument that she was being treated in
ales favourable manner than parent of nondisabled children who could work flexibly. The ECJ
ruled in her favour on the basis of European Employment Framework Directive 2000/78/EC16
and upheld a case of associative discrimination.
Harassment is the unwanted conduct regarding pertinent protected characteristic as a result of
which the dignity of a person is contravened and they are made to feel degraded, humiliated or
14 [1995] 1 AC 1
15 (2008) C-303/06
16 European Employment Framework Directive 2000/78/EC
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the like. In Strathclyde Regional Council v Porcelli17, two male colleagues were held liable for
harassment and direct sex discrimination by the tribunal as they removed Procelli’s belongings,
stored equipment beyond her reach, withheld information, made suggestive remarks and
deliberately brushed against Procelli.
Third part harassment is something which comes from someone who is not an employee of the
company, for instance from its customer. The liability is raised for the employer when the
harassment takes place on two occasions at minimum, where the employer is aware of same and
where the employer fails in taking the reasonable steps for preventing the same. Victimization
refers to the unfair treatment of an employee once they make a complaint or support a grievance
raised through the Equality Act, 201018.
Employment contracts
Employment contract are another crucial element of recruitment process. The employers are
required to give a written statement to the employee regarding the initial employment particulars
within a period of two months from the commencement of employment. An employment
contract can also be made in a verbal formal; and thus, during the recruitment process, care has
to be made to avoid any verbal commitments being made. Apart from the express terms in the
written employment contract, there are certain implied terms which have to be followed by both
employer and employees. These implied terms stem from the case laws, customs and practice,
work rules, statute, confidentiality, and collective agreements. In United Bank v Akhtar19, the six
day notice to employee to relocate resulted in successful claim of constructive dismissal as this
was a breach of implied term of contract of mutual trust and confidence.
17 [1986] IRLR 134
18 At 6
19 [1989] IRLR 507
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Managing change and reorganization
Manner of changing contracts
There can be different situations in which the employment contract could be required to be
changed. Where an employer wants to extend their trading hours, they may have to extent the
employees’ shifts. This would require a variation of employment contract. The first step in this
regard relates to making consultation with the employee to try to get their agreement on change.
Where this is successful, a new employment contract is formed, which covers the requisite
changes. In this process, consultation is a key part and would depend upon the number of
employees a company has; for instance, for 20-99 employee organization, consultation has to last
for 30 days, whilst this period is for 45 days for over hundred employees20.
Requirements of redundancy law
Redundancy can take place in three situations:
 Employer intends to or has ceased the business;
 Employer intends to or has ceased the business in location where the employee was
working; and
 The demand of the work being carried out by the employee has diminished.
In such situations, there is a need to follow the ACAS Code of Practice: Disciplinary and
Grievance Procedures, which is not restricted to redundancy situations. This process involves
collective consultation. Under the Trade Union and Labour Relations (Consolidation) Act,
199221, a list of information has been set out which has to be given by the employer before the
20 At 6
21 Trade Union and Labour Relations (Consolidation) Act, 1992
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star of consultative process to the representatives which includes information like the reason for
proposed redundancy and proposed method of selection. The employer also has a legal duty to
look for suitable alternative employment for the employee being made redundant22.
Requirements on business transfers
A transfer of undertaking or TUPE takes place when the employer sells a part of or all of the
business and where the business is being transferred to new employer. Two kinds of transfer are
covered under Transfer of Undertakings (Protection of Employees) Regulations 200623, i.e.,
economic entity transfer where the identity is retained and the transfer of service. The key
purpose of TUPE is to protect the employees on transfer. As is the case with redundancy, a
consultation process also undertakes in these cases.
Managing pay and working time
Stakeholder rights in field of pay, leave and working time
Pay is the key part of employment relationship and is a contentious issue. Under the Equality
Act, 2010, it is unlawful to discriminate on the basis of gender in the matter of pay, when the
men and women carry out same task with same difficulty and in same scenario. The Working
Time Regulations 1998 cover the rest breaks, holidays, night work and weekly hours of the
employee and is based on the European Directive based on health and safety. As per these
regulations an employee cannot be made to work for over 48 hours a week. A result period of 11
consecutive hours in a day and twenty four hours in a week is required. Annual paid leaves are to
22 At 6
23 Transfer of Undertakings (Protection of Employees) Regulations 2006
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be given to the full time employee of 28 days per year. Night work is defined as 12 midnight to 5
am24.
Equal pay law
Even though the equal pay law has been in existence since a long time, there remains a major
pay gap between men and women. And for this purpose, there is a need to manage this different.
Where an organization loses an equal pay claim from October 01st, 2014 onwards, they can be
instructed by the Employment Tribunal to carry out pay audit, unless the same has been done in
last three years, where it is deemed that audit is not sufficient to address the issue; and where the
demerits of undertaking the audit outweigh the merits. The equal pay legislation gives the right
to itemised pay statement and right to not suffer any kind of unlawful deductions from pay, along
with the employee not to be paid less than the National Minimum Wage25.
Key maternity, paternity and other employment laws
Maternity leaves are bifurcated into two periods of leaves, i.e., ordinary and additional and both
of these are of 26 week period. This means that the women get 52 week period as maternity
leave; though, the paid maternity leave is only for 39 week period. The same law is applicable
for adoption leave. The UK laws also provide for paternity leave for the partner of person who
adopts or gives birth to a child, for up to two weeks. This leave has to be taken with a period of
56 days from the birth or placement (for adoption) of child. A parental leave can be taken for
employees with child below age of 5 for a period of 18 week unpaid leave. There is also an
24 At 6
25 Ibid
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applicability of flexible working, time off for dependants and shared parental leave in UK
employment laws26.
Treating staff lawfully
Requirements of health and safety law
A key employment law area relates to the legislations regarding health and safety of people at
workplace, which is covered under the Health and Safety at Work Act, 197427. This legislation
sets out the requirement for maintaining the workplace and the equipment; carrying out the risk
assessment; safe manual handling; personal protective equipment provision; ensuring safety of
usage of display screen equipment; and the provisions related to suitable equipment at
workplace. This act sets out the duty of the employer to provide a safe system of work, safe
premises and safe place of work, safe and adequate plant and equipment, and competent and safe
fellow employees. This act also imposes duties on employee to take the reasonable care for their
own safety and health and in cooperating with the employer in making sure that the requirements
of health and safety are met28.
A key point in this regard, which is worth noting, is that the claims related to health and safety,
are not made in Employment Tribunal and instead are made in High Court or the county court.
This is because the employees usually look to get compensation for the accident which resulted
in their injury at workplace29.
26 Ibid
27 Health and Safety at Work Act, 1974
28 At 6
29 Ibid
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Implied duties regarding management of employees
The implied duty regarding the management of work includes that the employee would not be
discriminated against. So, the employer has to ensure that the incidents of victimization and
harassment do not take place at the workplace. It is crucial that the harassment relates to a
protected characteristic in order to bring a claim under the Equality Act, 2010. It is crucial to
note that harassment can take place as a result of an isolated incident also, where it is serious
enough, as was seen in Bracebridge Engineering Ltd v Darby30. In this case, Darby had been
criticised due to her leaving early on different occasions. At one instance, two male supervisors
stopped her while she went to wash her hands and they thought that she was leaving early. When
she denied this, they carried her forcefully in a darkened room, where she was sexually assaulted
and lewd remarks were passed. Even upon making complaint with the general manager, they did
not take any action. She made a claim of sexual discrimination and harassment and resigned. The
employer stated that it was a one off incident yet the EAT made the employer liable for
harassment as the issue was deemed as serious.
Freedom of association
Freedom of association refers to the right of the employee to join any trade union and the
employee cannot be put at a detrimental position for doing so, and even for not joining a trade
union. Being a member of trade union allows the trade union to be involved in disciplinary
situations; however, the trade union is not necessarily to be recognized by the employer.
However, some issues can be only negotiated on behalf of the employee where these trade
30 [1990] IRLR 3 EAT
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unions are recognized and this recognition can come through four different routes of voluntary,
semi- voluntary, automatic and recognition by ballot31.
Managing performance and disciplinary matters
Unfair dismissal regarding misconduct and capability
Under the Employment Rights Act, 1996, five possible fair reasons for dismissal have been
covered and these include conduct, redundancy, capability or qualification, statutory ban, and
some other major reason. This discussion would be confined to the matter of capability and
misconduct32.
Conduct is the aptitude, skill, health or the mental or physical quality of a person. Where a
person is dismissed for the reasons of them lacking the capability which results in the person not
able to perform the job in an adequate manner, it would be deemed as a fair dismissal. However,
where the employee is dismissed even when they are properly performing their job, and their
incapability is quoted as the reason of dismissal, the employee can bring a case of unfair
dismissal. Even when the employee is not performing properly, it is required on part of the
employer to try to help the employee in attaining the requisite level of performance. This can
include informal talks or use of performance appraisal system. Where these are not successful, a
disciplinary warning can be given to the employee. There have to be two warnings given to an
employee, before they can be dismissed. There is also a reasonable time to be given to the
employee to improve after first warning and before any other warning is given33.
31 At 6
32 Ibid
33 Ibid
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In D B Schenker Rail (UK) Ltd v Doolan34, Doolan had been working as a Production Manager
for the company and this was a role which was safety critical and stressful one. By the end of
2007, a sickness absence was taken by him and he was ready to get back to work in early 2008.
Before being permitted to continue with his job, the organization did a medical exam and found
that Doolan was stressed. The employer held that the employee was not fit for the particular job
and offered alternative roles, which Doolan denied and was untimely dismissed on capability
grounds. The Employment Tribunal held this as unfair dismissal. But, this decision was
overturned by the EAT as the medical investigation was deemed as a proof of incapability.
Conduct can be classified into misconduct and gross misconduct. The latter includes acts of
fraud, theft and violence and the former includes less serious issues like poor punctuality or
attendance. With the case of British Home Stores v Burchell35, the Burchell test was born, which
helps in deciding upon the fairness of dismissal in cases of misconduct of employee. In order for
the dismissal to be deemed as fair, there is a need to show that the employee had been guilty of
misconduct, the employer had reasonable grounds for believing this after a proper investigation,
and that the conducted investigation was reasonable.
Employee right to be accompanied at serious discipline and grievance hearings
A procedure for statutory dismissal, disciplinary procedure and statutory grievance procedure
was established through the Employment Act, 2002. These procedures were aimed at having a
clear procedure for managing the dismissals in easier manner. However, these have been
replaced with the ACAS Code of Practice: Disciplinary and Grievance Procedures. Now, before
an employee is dismissed, there is a need to send a written invitation to the employee to invite
34 (2011) UKEATS/0053/09/BI
35 [1978] IRLR 379
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them to a disciplinary meeting and to set out the alleged offences. A meeting is to be held with
the employee to discuss the issue and determine the need for disciplinary action. Lastly, the
employee is to be allowed to appeal against the disciplinary sanction which has been imposed36.
The employees have the right to be accompanied at the disciplinary meetings by a colleague or a
representative of trade union. Even though the lawyers are not included in this lot, recent trends
have shown that the same can be done where the allegations are of serious nature. For instance,
where a teacher has been accused of indulging in improper conduct with a child, it would be
deemed as an appropriate thing to permit legal representation. Two leading examples of this
include the cases of R (G) v The Governors of X School37 and Kulkarni v Milton Keynes Hospital
NHS Trust38.
36 At 6
37 [2011] UKSC 30
38 [2009] EWCA Civ 789
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Bibliography
Primary Sources
Cases
Amnesty International v Ahmed [2009] IRLR 884 EAT
Bracebridge Engineering Ltd v Darby [1990] IRLR 3 EAT
British Home Stores v Burchell [1978] IRLR 379
Coleman v Attridge Law (2008) C-303/06
Coleman v Attridge Law (2008) C-303/06,
D B Schenker Rail (UK) Ltd v Doolan (2011) UKEATS/0053/09/BI
Kulkarni v Milton Keynes Hospital NHS Trust [2009] EWCA Civ 789
Newbury v Sun Microsystems [2013] EWHC 2180
R (G) v The Governors of X School [2011] UKSC 30
R v Secretary of State ex parte Equal Opportunities Commission [1995] 1 AC 1
Strathclyde Regional Council v Porcelli [1986] IRLR 134
United Bank v Akhtar [1989] IRLR 507
Statutes and statutory instruments
Employment Rights Act, 1996
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Enterprise and Regulatory Reform Act, 2013
Equal Pay Act, 1970
Equal Treatment Directive 2006/54/EC
Equality Act, 2010
European Employment Framework Directive 2000/78/EC
Health and Safety at Work Act, 1974
Trade Union and Labour Relations (Consolidation) Act, 1992
Transfer of Undertakings (Protection of Employees) Regulations 2006
Working Time Regulations, 1998
Secondary Sources
Books
Aylott E, Employment Law (Kogan Page Publishers 2014)
Collins H, Employment Law (2nd edn, Oxford University Press 2010)
Daniels K, Employment Law: An Introduction for HR and Business Students (3rd edn, Chartered
Institute of Personnel and Development 2012)
Honeyball S, Honeyball & Bowers' Textbook on Employment Law (14th edn, Oxford University
Press 2016)
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