5EML Assignment Example

Introduction

Employment law governs the rights of the employees and provides governance on how they should be treated. The laws are meant to secure the interests of the employees and help determine the role of experts and HR practitioners in ensuring that the laws are adopted in the organisation. The following booklet provides information on the aspects of law to be submitted to the Citizens Advice Bureau.  The booklet will refer to the UK employment laws, and examples will be provided to provide evidence on the same. This will be in accordance to CIPD (2020) where the legal requirements are considered in completing the different HR functions such as selection and recruitment of employees to the workplace.

Legal System

1.1 Aims and objectives of employment regulation

Employee protection

Employees have the right to be protected in the workplace, and there are also legal rights that they are entitled to. The objective in this case is to ensure that employees are not discriminated on basis of age, religion, gender, sexual orientation, or any other of relation that they might have. Employees are legally protected in all stages of relations between them and the employers, from the earliest stage of recruitment to the later stage of retirement of exit from the workplace. According to Wintemute (2016), the Equality Act and EU anti-discrimination laws fight for the rights of employees in the workplace, and the employers are expected to follow the laws and guidelines to ensure that employees are protected in their work places.

Social justice

Social justice is an objective that is meant to ensure that every employee is given the right to have access to employment, and no form of discrimination should be realised within the workplace. According to CIPD (2020), social justice promotes diversity and inclusion in the workplace, and the Equality Act 2010 sets the standards on how the employees should be treated under the UK employment law.

Fairness

The employers with the support of HR professionals in the workplace should ensure that they treat all employees in fairness. Fair procedures in different HR functions should be followed to ensure that the HR adheres to the laws strictly. This also prevents discrimination and provides a safe work place for the employees, while at the same time enhancing employee productivity. Guest (2017) urges HR professionals to commit to the law to enhance fair treatment of the employees, which is significant in promoting job security for the employees.

1.2 Role played by tribunal and courts system in enforcing employment law

Employment tribunal

Employment tribunal deals with the employment related claims, where the tribunal proceedings start three months from the date when the complainant reported the claim. The claimant in this case has to lodge complains in a form, providing particulars on the issues that have resulted to they claim. ACAS plays a role in enhancing early conciliation before the claim is taken to tribunal. After the claim is taken to the tribunal, the judge reviews the paperwork and sometimes the claims are dismissed if they are made on unreasonable grounds. When the judge decides to go further with the proceedings, a witness is expected to attend to provide statements on the issues. The claimant and the respond are expected to appear in tribunal hearings, failure to which the claim may be dismissed, or judgement may be made in favour of the party in attendance (CIPD, 2017).

The court system

The employment court system, which is categorised as the civil law is enforced when the claimant sues the respondent in the civil court. The claimant in most cases is an employee who files allegations that show that he/she has been treated against the legal standards. A good example may be a complaint from an employee that the employer is giving wages below the minimum legal wage. When the civil court fails to address an issue, it is taken to the court of appeal, and later to the Supreme Court if the court of appeal fails to make judgements on the case. The employee should have proof of the claim to show to the court that the pay is below the standard pay wage.

The following is an illustration of a journey of employment tribunal through to the courts up to the court of appeal. The case of Chief Constable of Norfolk v. Coffey is an example.

The highlights of the case are that the employer should assume that the current condition of the officer should not be used against him. In order for the condition to be determined as progressive, medical evidence should be provided to show that the employee is likely to become disabled in the future. Nevertheless, the claimant has the right to be treated in fairness like other employees, without the employer having to identify with the issue of perceived disability (Simpson, 2019).

1.3 How cases can be settled before or during formal legal procedures

Early conciliation involves having the employees raise the concerns informally or write a formal grievance where they get to communicate and interact with the employer in order to address the issue. Employees are expected to inform ACAS before making a tribunal, and this allows the team to engage the respondent in resolving the dispute. Early reconciliation makes it possible for the claimant and the respondent to make early agreements without involving the tribunal (ACAS, 2020).

Arbitration is the method used to resolve dispute where a third party makes decisions on behalf of the claimant and the respondent. The arbitrator should be a neutral person, who takes time to listen to both sides of the dispute. Before the arbitration process starts, the parties should agree to respect and adhere to the decision made by the arbitrator. In doing so, the parties should sign an ACAS form to agree to the terms (ACAS, 2020).

Avoiding discrimination

2.1 Principles of discrimination law during recruitment, selection, and employment

The principles of discrimination relate to the identification of the means through which the employees are protected under the Equality Act 2010. Discrimination may be direct, indirect, and in association to. Avoiding discrimination relates to avoidance of protected characteristics such as age, sexual orientation, sex, marriage, gender, race, disability, and religion.

Direct discrimination

This type of discrimination arises when one party discriminates against on basis of protected characteristic. It also involves having one party treat the other party in a less favourable way as opposed to how they would treat others (Albert, 2019). In recruitment and selection for instance, the HR professionals should not focus on asking questions on the protected characteristics mentioned above. HR should not ask questions on whether candidates seeking for a job opportunity have any form of disability that would prevent them from effectively handling job roles. Instead, they should ask candidates whether they should adjust to make employees fit in the new job roles and job conditions.

Indirect discrimination

Indirect discrimination occurs when a criteria is developed that seems neutral to some, but in reality or practice, it is less fair or less favourable to a minority group. Sometimes, the arrangements made in recruitment and selections are valid to the employer if they can be justified (Albert, 2019). For example indirect discrimination may arise on basis of sex, for a case when internal recruitment for a certain job position are advertised internally and the only persons who can apply for the job are men. This may be a form of indirect discrimination against women on gender basis.

Discrimination by association

This is where less favourable treatment is observed on ground of a third party. The victim of discrimination does not directly possess the protected characteristic. Sometimes, an employee may be discriminated because maybe one of their siblings is gay. This is discrimination by association, and it may also happen in recruitment and selection.

Contract Law

2.2 How contracts of employment are established

A contract of employment is an agreement between the employer and the employee, and it has to be binding for it to be a legal contract. The Employment Rights Act 1996 is a regulation that well describes who an employee is, and helps determine the written statements on the relations between the employer and employee on the legal context.

There are four elements of a valid contract, and they include offer, acceptance, consideration, and intention to create legal relations. The UK legal position is governed by the contract law where the employer gives offer of employment to the employee, to help identify the conditions that the employee is expected to work with. Acceptance is the second element where the employee gets to accept what the employer has provided. The third element identifies with the considerations between the parties on basis of wages as well as hours of work and other express terms. The fourth and final element is the intention to create a legal binding agreement between the employer and employee (CIPD, 2020).

Differences between express and implied terms

The contract of employment is a combination of the express and implied terms. Express terms are those that are written and given to employees, and others are also given to them verbally. According to Golding (2020), employers within an organisation have to understand the law in order to draft express terms of employment. The mandatory express terms a contract include the salary and benefits given to the employees, the working hours, which are differentiated on the flexibility of the employees to working in the organisation, the employee status in the business, and the rules and regulations that govern different work particulars in the organisation. These mandatory have to comply with the UK regulations on working hours. ACAS has provided guidelines that employers should follow in determining the maximum hours that the employees should work, the breaks and holidays given to employees, work experiences, and flexible working hours requested from employees.

Implied terms on the other hand are those that are implicit in the employment contracts. The implied terms are incorporated in the workforce agreements between employers and employees. The terms determine the duties of employers to employees, and duties of employees to their employers. Implied terms identify with the standards and rights of the employees in their contribution to completing the organisational roles and objectives (2019).

3.1 When and how contracts can be changed lawfully

Contracts can be changed lawfully under the flexibility clauses. Flexibility clauses allow employers to change some of the employment conditions, but the only changes should be made have to be highly reasonable. For example, when an employer engages an employee and requires the employee to work as an expatriate in a different country, the employer may use the flexibility clause to change the terms of employment with the employee.

The two alternative ways in which organisations change contracts include negotiations and forcing the change. According to Springer (2015), it is necessary to make agreements when the need arises to be flexible. In order for an agreement to be made, the parties have to engage in negotiations where they come up with alternatives to support the suggestions. For instance when employees move from the organisation as expatriates, employers may negotiate with them on the new term of employment. Forcing change is the second alternative where employers force changes even if they affect the terms of contract with their employees. An example is the restructure of John Lewis Company, where the executive team had to fire some of the executive team members (Moss, 2019). It is certain this was not the agreed terms, but the management changed the terms.

Organisational change

3.2 Requirements of redundancy law

Redundancy should be the last resort within the organisation, but when the need arises and the organisation has to change and result to redundancy, the HR has to relate with the laws on the same. Employers propose redundancy to reduce the costs of business operations and this is made significant when the numbers of employees are reduced in the business workforce. Redundancy in the context of employment law requires employers to follow relevant legislation to enhance understanding of the legal reasons on why redundancy is considered.

The Employment Rights Act 1996 requires employers to give reasons for redundancy, and the validity of the reasons is realised when employer ceases to continue with the business operations, and diminishes the employee roles in the business (STA Law Firm, 2019). The Trade Union and Labour Relations Consolidation Act 1992 requires employers to engage in consultation before they result to dismissal of 20 or more of the workers in the organisation. Failure to engage in consultation results to breach of the law and the employers have to be accountable for this. An example is the Ethel Austin Company that made over 1700 employees redundant without consultation (Labour and European Law Review, 2015).

Steps to lawful redundancy (ACAS)

The first step according to ACAS involves making decisions on whether redundancy is necessary, and this helps in effective planning. The second step involves holding redundancy consultations, to provide plans on the changes, and seek feedback from employees and their representatives on the same. Consultation depends on the number of employees being dismissed from the workplace, and the period of time the employees have worked in the organisation. The third step is selection of employees for redundancies, and this involves selecting employees from a pool and their representatives. The fourth step is giving employees notice of redundancy, both face to face and in writing. Fifth step is to work out the redundancy pay, and the least statutory amount should be paid to employees. Employment contracts should be checked against the redundancy pay. The sixth step is to support the staff and help them plan for the future. This can be done through counselling, provision of financial advice, and helping employees get work from another company.

Failure of the employers to follow the above identified steps may result to staff redundancies as the remaining employees will fear about the security of their jobs. They may also experience poor morale that may affect their productivity and performance in the business. The employers may also face tribunal claims from the employees dismissed from the workplace (Odesola, 2019).

3.3 Main requirements of law on business transfers

According to CIPD (2020), the law requirement on business transfer requires is the Transfer of Undertakings (Protection of Employment) TUPE 2006. This law enhances protection of employees after the business is transferred to a different owner. Employees are entitled to terms and conditions of employment that they had before the business is transferred. According to the Employment Rights Act 1996, the employees are also entitled to continuity of employment. This means that the rights of the employees must be protected even after the business is transferred.

Process for successful TUPE transfer (ACAS)

Conducting TUPE transfers requires the employers to follow four stages. The first stage is to research on the advantages and disadvantages of transfers before committing to the transfer. This stage also involves planning for the transfer and determining the future risks and benefits.

The second step is preparing for the transfer, where employers identify actions to be taken in managing the transfer process for both the incoming employers and the outgoing employers.

The third is the transfer stage where incoming employers identify actions to effectively manage employees and increase their morale. Outgoing employers have to continually engage with employees to find out how they are coping after the transfer.

The fourth stage is after the transfer where performance and productivity of employees is measured after transfer. Problems are also identified to help employers make adjustments to address the challenges (ACAS Guide, p. 16-29).

Worker’s rights

4.1 Statutory rights workers have in the fields of pay, leave, and working time

Workers in UK have the right to minimum wage under the National Minimum Wage Act 1998. Scott (2017) explains the case of Best Connection Group v HMRC, where after investigations; HMRC found out that the employees supplied by the Best Connection Group agency were paid less than the minimum wage. On each employee who was underpaid, HRMC gave a notice that the agency would incur a penalty. Best connections paid some of the employees and part of the penalty, and HRMC issues more penalties. In a tribunal, the judge argued in favour of HRMC by stating that unlimited notice can be issues as long as there is a reason to do so, and as long as HRMC has the power to enforce the law.

In the case of Capita Customer Management Ltd v Ali (EAT), Mr Ali claimed that he was sex discrimination on basis of shared parental leave. After his two weeks paternity leave, Mr Ali received 14 weeks statutory pay leave, which was not the case with the female maternity leave pay. The Employment Appeal Tribunal held that male employees cannot be compared to female employees on maternity leave. Ali made an appeal to the court of appeal that there was sex discrimination on basis pay given to the workers while on maternity leave. The shared parental leave was meant for childcare, but maternity leave is meant to help women recuperate from pregnancy, birth effects, breastfeeding, and development of relations between the mother and new born child.  The circumstance of the woman is different from the man as Ali was expected to take the leave to provide child care.

On the working Time Regulation 1998, the case of Ville de Nivelles v Matzak (ECJ) on working time is to be evaluated. Matzak was expected to be stand-by and report to work eight minutes after he was called to duty by his employer. The stand by time should be regarded as working time because the employer restricted his movement, and thus Matzak should be compensated for the same (Judgement of the Court, 2018).

4.2 Requirements of equal pay law

The equal pay law works on basis of promoting fairness and the Equality Act 2010 regulation was introduced to ensure that the employers treated their employees fairly. The law holds that men and women should be paid equally as long as they do similar work, similar rated work, and work that is of equal value (CIPD, 2020). Employers are obligated to provide equal pay to the employees to avoid pay discrimination (Hepple, 2010). In my organisation, the HR has promoted pay transparency to ensure that there is no evidence of pay discrimination between men and women.

4.3 Maternity, paternity and other family-friendly employment rights

The maternity, paternity, and family-friendly employment rights are meant to promote work-life balance and childcare. Employers hare obligated to support parents as they seek to commit to their families.

Maternity leave and pay

Before childbirth, women who are pregnant are entitled to paid time off to visit ante natal clinics. Women are entitled to compulsory maternity leave after birth. Women may take statutory maternity leave of up to 52 weeks, with 39 weeks statutory maternity pay. Shared parental leave is available to both parents in. After maternity, women have the right to return to work with the same terms and same benefits, and request for alternative work when there are any possible health risks. They also have the right to be protected from detriment and unfair treatment (CIPD, 2020).

Paternity leave and pay

Fathers are entitled to unpaid time off to accompany their partners to ante natal clinics. Paternity leave is given to the biological father of the child or a partner to the pregnant mother. Paternity leave duration is two weeks, which should be taken any day after the birth of the baby, and within the first 56 days of the baby’s birth date. Same to the women, the fathers have the right to return to the same job with the same terms and conditions of employment (CIPD, 2020).

Family friendly employment rights

The employees have the right to take time off for emergencies, when any of their dependent family members or friends request for such. This means that the employees have rights to flexible working to attend to the issues of concern. However, they are given unpaid off to attend to such.

5.1 Requirements of health and safety law

The Health and Safety at Work 1974 regulation works together with the Management of Health and Safety and Work Regulation 1999. These regulations are meant to promote well-being of the employees in the workplace (CIPD, 2020).

Employers have the obligation to provide safe and healthy working condition for employees and in so doing must follow the statutes and codes of practice under the HSWA act. This means that they should examine causes of harm and assess precautions that should be taken to prevent any harm and risks that may cause injury to employees (CIPD, 2020).

Employees are expected to identify hazards in the line of work and report to the employers to promote safety in the workplace. Flexibility in working hours under the Working Regulation Act 1998 is also significant in promoting health and safety among the employees (CIPD, 2020).

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

Managing employees at work is a responsibility that the employer should take to establish a good relationship that will promote performance in the business. Employers have the duty of treating employees fairly, provide high form of respect to them, and ensure that they develop a psychological contract where each party’s expectations are well defined, respected, and followed (Alfes, Veld, and Furstenberg, 2020). The duty of mutual trust and confidence is an implied term of employment contract, which requires the employers to provide a safe working environment where the well-being of the employees is well taken care of. Employers have the duty to pay employees for the work done, and follow the regulations that enhance fair treatment of all the employees.

Breaching of employment contracts and implied duties result to loss of money that is used in resolving the differences experienced between employer and employee. Failure of the employee to adhere to employment contracts may lead to dismissals, which may sometimes result to financial compensation.

In order to resolve issues that might be considered to be the cause of contract breach; the employers are expected to develop a platform of communication between them and employees.  This according to Dixon-Fowler et al. (2020) enhances development of self-concept, which is significant in determining the involvement of employees in solving some of the conflicts experienced as a result of breach of contract. For the employees, they should be keen to identify misunderstandings before they emerge to conflicts, and seek early reconciliation before making claims to tribunals and courts. They should also make sure that they identify the right procedures that they should follow when addressing grievances.

5.3 Principles of law on freedom of association

Every person has the right to freedom of association under the Human Rights Act 1998. According to ACAS (2020), the Human Rights Act identifies with the basic rights if fairness, equality, dignity, autonomy and respect for all. These are the rights and principles that are incorporated in the employment law for all the employees within a particular workplace. Article 11 of the Human Rights Act developed the right of freedom of association, where employees are given the right to associate with others, and even form trade unions. Employers should never prevent employees from join trade unions, as this would be preventing the employee from exercising the right to freedom of association. It is against the law for an employer to prevent the employee from joining a trade union.

Dismissal

6.1 Requirements of unfair dismissal law in respect of capability and misconduct issues

Dismissals occur as a result of employee inability to complete their job roles and perform their different assigned tasks. The UK employment law requires dismissals to be fair, and this should only happen when the relevant procedures and relevant laws are followed. Dismissals as a result of capability issues occur when employees fail to perform their jobs, and when employers are unable to control the employees as a result of misconduct.

According to ACAS, employers may follow the following steps in disciplining employees as a result of misconduct. The first step understands the options available for an employee to deal with the misconduct or performance. This involves developing strategies to solve the issues. The second step is following a fair procedure where employees are informed of their misconduct and poor performance. Employees may raise grievances or decide to resign, and this gives way to the third step where an investigation is carried out. This involves collecting information on the misconduct or employee capability. The fourth step allows for disciplinary hearing where meetings are held for employees to answer to their misconduct or capability. The fifth decision relates to development of a decision on the disciplinary outcome, which should be fair and reasonable. First, employees may be given a warning, and when they fail to change, they may be dismissed for the misconduct. Finally, a record of kept of the disciplinary procedure, and all the information has to remain confidential.

Dismissal may be as a result of; 1) Misconduct that relates to failure of employees in following instructions, lateness and absenteeism, stealing. 2) Capability that relates to incapability of employees in completing standard jobs, and unwillingness to effectively carry out assigned job roles and responsibilities. 3) Redundancy, which relates to closure of business. 4) Breach of statutory restriction, which identifies with breaking the law and failure to follow the right procedures, and 5) other substantial reason as long as it is fair and genuine, and that which investigations have been carried out regarding the misconduct.

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

In serious disciplinary grievance hearings, an employee has the right to be accompanied. ACAS explains that the employees can be accompanied by a different person during hearing, but the employee should make this known to the employer, so that arrangements can be made on the same. Companions can either be a worker or colleague who works with the employee, a union representative, or an official who is employed by the trade union. The role of the companion during hearing is to provide a respond to the different points of concern that are developed during the meeting. The companion also takes notes during the hearing, and this helps him/her sum up the important issues of the case after the hearing (ACAS, 2020). 

References

ACAS (2020) Disciplinary procedure: step by step, online, available at https://www.acas.org.uk/disciplinary-procedure-step-by-step

ACAS (2020) Dispute resolution, online, available at https://www.acas.org.uk/dispute-resolution

ACAS (2020) The Human Rights Act, online, available at https://archive.acas.org.uk/index.aspx?articleid=4898

ACAS Guide, Handling TUPE transfers, online, available at https://archive.acas.org.uk/media/4012/Handling-TUPE-transfers-The-Acas-guide/pdf/Handling-TUPE-Transfers-The-Acas-Guide.pdf

Albert, E. T. (2019) AI in talent acquisition: a review of AI-applications used in recruitment and selection. Strategic HR Review

Alfes, K., Veld, M., & Fürstenberg, N. (2020) The relationship between perceived high‐performance work systems, combinations of human resource well‐being and human resource performance attributions and engagement. Human Resource Management Journal.

Bodie, M. T. (2019) Taking Employment Contracts Seriously. Seton Hall L. Rev., 50, 1261.

CIPD (2017) Employment tribunals, online, available from https://www.hr-inform.co.uk/employment_law/employment-tribunals

CIPD (2019) Employment law in the UK: the court system, online, available from https://www.cipd.co.uk/knowledge/fundamentals/emp-law/about/uk-court-system-factsheet

CIPD (2020) Contracts of employment, online, available at https://www.cipd.co.uk/knowledge/fundamentals/emp-law/terms-conditions/contracts-factsheet

CIPD (2020) Diversity and inclusion in the workplace, online, available from https://www.cipd.co.uk/knowledge/fundamentals/relations/diversity/factsheet

CIPD (2020) Employment law, online, available from https://www.cipd.co.uk/knowledge/fundamentals/emp-law

CIPD (2020) Health and safety at work, online, available at https://www.cipd.co.uk/knowledge/fundamentals/emp-law/health-safety/factsheet

CIPD (2020) Maternity, paternity and adoption rights, online, available at https://www.cipd.co.uk/knowledge/fundamentals/emp-law/maternity-paternity-rights/factsheet

CIPD (2020) Pay fairness and pay reporting, online, available at https://www.cipd.co.uk/knowledge/strategy/reward/pay-fairness-reporting-factsheet

CIPD (2020) Transfer of undertakings (TUPE): an introduction, online, available at https://www.cipd.co.uk/knowledge/fundamentals/emp-law/tupe/factsheet

Dixon-Fowler, H., O’Leary-Kelly, A., Johnson, J., & Waite, M. (2020) Sustainability and ideology-infused psychological contracts: An organizational-and employee-level perspective. Human Resource Management Review, 30(3), 100690.

Golding, G. (2020) The origins of terms implied by law into English and Australian employment contracts. Oxford University Commonwealth Law Journal, 1-29.

Guest, D. E. (2017) Human resource management and employee well‐being: Towards a new analytic framework. Human resource management journal, 27(1), 22-38.

Hepple, B. (2010) The new single equality act in Britain, The Equal Rights Review, 5, 11-24.

Judgement of the Court (2018) Case-law, available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=199508&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1#Footnote*

Labour and European Law Review (2015) Redundant Establishment, online, available at https://www.thompsonstradeunion.law/news/lelr/weekly-issue-424/redundant-establishment

Moss, R. (2019) John Lewis to reduce leadership team by a third, Personnel Today, online, available at https://www.personneltoday.com/hr/john-lewis-leadership-restructure/

Odesola, J. F. (2019) The Employer and the Employee: Your Legal Rights in Workplace. AuthorHouse.

Scott, K (2017) Tribunal rules in favour of HRMC in national minimum wage penalty cap case, online, available at https://employeebenefits.co.uk/issues/september-online-2017/tribunal-rules-favour-hmrc-national-minimum-wage-penalty-cap-case/

Simpson, S. (2019) The 10 most important employment law cases in 2019. Personnel Today, Online, available at https://www.personneltoday.com/hr/10-most-important-employment-law-cases-2019/

Springer, C. (2015) Changing contracts of employment: nine key considerations for employers, Personnel Today

STA Law Firm (2019) Worldwide: Redundancy of employment: English Law, online, available at https://www.mondaq.com/redundancylayoff/856972/redundancy-of-employment-english-law

Wintemute, R. (2016) Goodbye EU Anti-Discrimination Law? Hello Repeal of the Equality Act 2010? King’s Law Journal, 27(3), 387-397.

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