Requirements And Scope Of Employment Law And Regulations

MAN3131 Employment Law

The Aims and Objectives of Employment Law and Regulations

Employment Regulations are the significant part of Employment Law. Employment Law itself has it is great significance in an organization. It is important to study here that what were the requirements behind development of this law. This law has some aims and objectives. Employees are the valuable asset of every organization. In order to run a business in an efficient manner, it becomes necessary to consider interest of human resources. This law consist provisions related to working conditions of employees and describes an idol rules and policies structure in the concerned area. Lead objectives of Employment Law are to remove the following issues:-

• Age Discrimination
• Discrimination on the basis of Disability
• Discrimination based on religion, sexuality and gender
• Bullying and harassment at workplace (Taylor and Emir, 2012)

In addition to previously mentioned point, aims of employment law and regulations are to provide rules on the following topics:-

• Working Hours
• Minimum Wages
• Working environment
• Redundancy
• Parental Leave

This act focuses to provide an ethical and healthy working environment to employees. It is very common that in the absence of a law, a practice what business follows does not work in the favor of employees, so in this context by provide a set of practices in order to ensure interest of employees is the main objective of employment law and regulations.

Further, tribunal and courts plays an important role in enforcing employment law. These authorities ensure that businesses are following the required law in their day-to-day business practices. Employment Courts and tribunals are the authorities that listen, entertain, and give decisions related to disputes and claims between employers and employees (Essack, 2018). Whenever there is any issue related to workplace discrimination, unfair dismissal, redundancy, or so on comes into knowledge of the court, then courts look after the law and provides the decisions accordingly. Only creation of a law is not enough until unless there is no authority exist to ensure the applicability of the same. Role of Employment court and tribunals comes into light when any non-compliance related to employment law and regulations reports to them. These courts provide orders and decision in favor of innocent party.

In order to answer the investigation that how tribunal and courts systems enforce employment law? it can be stated that these authorities have their direct as well indirect role. In direct role, such courts and tribunal gives decision in the cases of disputes that earlier happened between employer and employee and make sure that the provisions of employment laws are met out. Further, in indirect role, these authorities develop an emotion of fear to employers of being sued and fined in case of non-compliance of the provisions of employment law and regulations (high performance consultancy, 2018).  

The Role of Courts in Enforcing Employment Law

The manner in that cases are settled before employment courts and tribunals is far clear. As earlier mentioned direct and indirect role of these authorities, it is to mention here that proceedings get start with the reporting of a case. As these courts are separately created and developed to entertain cases related to employment law, dispute resolution and claim settlement are the lead tasks to do. As soon as an employee or an employer, address their mutual dispute to court, court call upon the parties of the case. Further, similar to a civil or criminal court, these courts follows proceedings. In the progress of a case, such courts hear the parties, call the witnesses and proofs, review the circumstance, and at last gives an order or decision. Employment courts are mainly developed to provide justice to the one who suffered in a transaction. By following a legal and provided procedure, these authorities settled a case related to respective law and ensure the compliance of the same.

Recruitment, selection, and appointments of employees in an organization must be held lawfully. Now the question is that what is a lawful manner? This can be answered as that while selecting or recruiting an employee no such practice should be follow that is not allowed in the concerned employment law. Now these days, discrimination is one of the lead issues in the practice. It has noted that many of the organizations do discrimination with employees based on sex, cast, looks, and other factors. In UK, Equality Act, 2010 is there to protect employees from discrimination. Under this act, some protected characteristics are defined, on the basis of which, an employer can not do discrimination. These protected characteristics are as follow:-

• Age
• religion
• In a civil partnership or being married
• Disability
• Sex
• Race including nationality, national origin and colour
• maternity leave
• Being a transsexual person (Gov.uk (a), 2018)

All the aforesaid are protected characteristics under law and an employer can not segregate two of his/her employees on the basis of these factors. 

This is to mention that that discrimination can be direct or indirect. In a direct discrimination, a person treats less favorably in comparison to another who has protected characteristics. In an indirect discrimination, employer applies some policies that is discriminatory in respect of protected characteristics. 

Further, following points are required to be covered while preparing a presentation on the topic “managing recruitment, selection, and appointments”

• Recruitments must be open for the all the eligible candidates instead for a particular class of person, until unless vacated post does not demands so.
• While preparing Job Vacancies advertisements, required and demanded skills must be show at the very first
• In selection procedure, discrimination must not be done on any irrelevant and meaningless basis.
• Short listing of employees again is an important process and need to be done in fair manner.
• At the time of appointment, most eligible candidate must get opportunity.

In order to illustrate the aforesaid key points, it can stated that if a post get vacate in the organization then managers should welcome all the eligible candidates, follow a fair practice in selection process and appoint the best suitable person regardless his/her cast, gender or religion or other factors.

The Requirements of Unfair Dismissal Law

An employment contract is one of the key parts of recruitment process. Such contracts define the terms and conditions of the employment. By looking at an employment contract, one can assume that what are the expectations of the employer, what roles and responsibilities an employee is agreed to perform and other conditions related thereto. Such contracts are significant also for the reason that the same works as an important proof at the time of dispute. These contracts can be verbal as well as in writing. However, it is advisable to make them in writing in order to ignore future disputes. In those circumstances where such contracts are not in writing, recruitment process needs to be undertaken in a cautious manner. Although verbal employment contracts are also valid, yet according to the provisions of The Employment Rights Act 1996 employees are entitled to get a written statement consisting lead terms and conditions related to employment within the period of 2 calendar months of initiating work.

In an employment contract, majorly two types of terms and conditions are there. One is express and another is implied. Express terms of a contract are referred to those terms that are clearly mentioned in an employment contract. Whereas implied terms are those terms that have never been discussed and agreed by employer and employee but are obvious in nature. A relation between employer and employee is of fiduciary nature hence for this reason certain terms do exist in an employment contracts by default. Although implied terms are not agreed, however neither and employer nor the employee can deny fulfilling the same. Such implied terms are defined based on various factors such as work rules, culture, workplace environment, nature of employment and collective agreements. It has held in the case United Bank Ltd v Akhtar [1989] IRLR 507, EAT that by serving a 6 days’ notice of relocation, employer has breached the implied duty of mutual trust and confidence. Hence, this can be stated that in every employment dispute, employment contract works as a prima facie evidence and for the reason it must be in writing and includes every possible term and condition.

Changes in Employment Contract

In the given case, facts are not clear that how far relocation would be, therefore company can plan to manage this re-organization by the way of variation of contract.   

As earlier stated that an employment contract is a legal document, hence it is very clear that the same cannot be change easily. There is a prescribed procedure, one need to follow while changing a employment contract. Change can be related to any of the factor such as working hours, salary, shifts, relocation and so on. The lawful way to make changes in an employment contract is discussion between employer and employee. Consultation and discussion is significant parts in the process of changing a contract. An employer at the very state must discuss the proposed changes with employee and after this if they both become agree on a point, changes can take place in an employment contract. Period of consultation will depend on the number of employees of the organization. In case of a huge number of employees, if an employer plans to have a collective consultation, then also there must be procedure to address individual concern. If through the way of consultation, employee does not become agree then following are the options that are available to employer in such situation:-

S. No.	Way Out	Risk Involved
1.	Make changes accordingly despite the will of employee	Claim can be made by an employee on the basis of constructive dismissal.
2.	Dismiss the employee and offer new terms and conditions to him/her.	Employee can reject such proposal and can claim unfair dismissal.
3.	Abandon the plans of re-organization	Business can face economic loss and this option is not even practical in nature.

The Scope of the Right for Employees to be Accompanied at Serious Discipline and Grievance Hearings

Redundancy indicates a circumstance where the office of an employee remains no longer useful and employer take decision to show the outer way to employee (totaljobs, 2018). In such situation, it is the duty of employer to apply this redundancy lawfully. There are few ways prescribed in the law to introduce redundancy in an organization. It is a crucial issue and need to be handle with due care at the end of the employer. An employer can manage redundancy lawfully by following the given steps:-

1. Collective Consultation:-If there are number of employees do exist who are adhere to suffer due to redundancy then employer must consult with them. As earlier mentioned in the section of “Changes in Employment Contract,” similarly in this case also number of concerned employee will decide the prior period of consultation. This is important to mention here that in those cases where numbers of effective employees are less than 20 then there is no need to plan a collective consultation.
2. Individual Consultation- After collective consultation, issues of each employee must be address on individual level. By following this process, an employer can come to know about the specific problems of his/her employees.
3. Appropriate Alternative employment: – In the case of redundancy, an employer must offer suitable alternative employment to employee. Such alternative must be provided according to the condition of specific employees (acas (a), 2018)

By following aforementioned procedure, an employer can deal with redundancy lawfully.

Business transfer is a situation where an employer transfers full or a part of his/her business to another party. In the scenario employees of the organizations does remain same but their employer get change (Gov.Uk (b), 2018). Such business transfers are a part of the business requirement and can be of majorly two types. One kind is the situation where only an economic part of get transfer and it retain it is identity as earlier. In another situation, transfer of service takes place. It happens in those situations where employer has a business of providing services. According to the provisions of Undertakings (Protection of Employees) Regulations 2006, there are mainly two tasks are required to complete and the same are as follow:-

1. Consultancy: -Employer must discuss about transfer of business with the employees who are expected to work under new employer. Employer must inform to and consult with employees about the transfer, reason of transfer, implications, impacts, and other factors of transfer. In the absence of such consultation or an appropriate consultation, each affected employee will be entitled to receive a protective award upto 13 weeks.
2. Employee Liability Information: – It is the responsibility of previous employer to provide details of all the affective employees to the new employer at least before 28 days of transfer (XpertHR, 2018).

Statutory Rights of Workers

The most important term in an employment contract is pay. According to the provisions of Equality Act 2010 two employees must get the same pay if they are doing the work of similar nature and putting same level of efforts. It was held in the case of Capper Pass Ltd v Lawton [1976] IRLR 366 that there must not be any discrimination in the wages on the basis of gender if the two employees of different gender is doing the same job. Further, it was held in the case of Springboard Sunderland Trust v Robson [1992] IRLR 261 that if two employees are doing different jobs of similar value, they must be paid equally. Concept of pay audits is also there in order to ensure that organization is following the practice of equal wages.

 Apart from the pay, every full time employer is eligible to paid yearly leave of 5.6 weeks i.e. 28 days. Bank holidays of the country can be inclusive or exclusive from mentioned 5.6 weeks at the option of the employer.

Working Time Regulations 1998 is the law that defines the provision related to standard working hours of employees. According to the provision of this law, a full time employee is required to work 48 hours in a week. An employer cannot ask an employee to work for more than 48 hours in a week in ordinary circumstances. If an employee wishes, he/she can opt to work for more than 48 hours in a week.  An employee cannot be forced them to sign any such opt by the employer (O’Gallagher, Lewis, Mercieca and Moutray, 2013)

Managing Recruitment, Selection, and Appointments

There was a separate law named Equal Pay Act 1970 on this topic, however now provision of the same has included in Equality Act 2010. As the name implies, both of the said acts have developed to remove discrimination among employees. Where earlier act was only consisted the provisions related to pay, substitute act is commonly concentrates to develop an equal environment at workplace. Majorly 3 requirements are there that are mentioned hereunder:-

1. Like work: – For the applicability of this act, this is necessary that work of two employees must be of similar nature irrespective of their gender.
2. Work must be rated equivalent: – In many of the organizations, rating system takes place. In this system, organizations do analytical job evaluation and based on that, jobs are given different ratings. For the application of Equal Pay Law, it is important that work of two employees must fall into category of same rating jobs.
3. Work of the equal value: – When no analytical job evaluation has done, however employee thinks that the work he/she is doing is of similar value that the employees are doing, hence in those circumstances this law will be applicable. Therefore, an employer will be liable to pay equal pay to all the employees doing the work of similar value (Equality and Human Rights Commission (a), 2018).

An employee also lives in a society and has some relations out there. In the course of performance of social duties, they need to have some additional benefits related to their jobs. These social benefits are known as Family-friendly Employment rights. Provisions of maternity leave, paternity leave and others are there for employees. As per the provisions of employment law, a female employee who is pregnant is eligible for maternity leave. This leave is divided in 2 parts such as Ordinary Maternity Leave and Additional Maternity Leave. Both of such leaves are allowed for 26 weeks each. An employee, who is eligible for OML, becomes eligible for AML also. Although total maternity leave is allowed of 52 weeks, yet pay will only be provided for 39 weeks (Williams, 2016).

Further, similar to maternity leave, paternity leave are allowed to that male employee whose partner gives birth or adopts a child. According to the provisions related to paternity leave, eligible employee will be granted an ordinary parental leave of 2 weeks and during this, employee will be provided pay by the rate of £139.58 per week. In addition to maternity and paternity leave, provisions of flexible working hours are also available. An employee who has completed 26 weeks of his/her employment as on 30^th June 2014 can ask for fixing of working hours as per the his/her comfort. This is to mention that to ask such privilege an employee must follow the provided code of guidelines.

Major Requirements of Health and Safety Law

Bullying, harassment, and stress are the lead reasons for that health and safety law requires in an organization. Health and Safety at Work Act 1974 is the legislation that is there to protect employees from the aforementioned situations. As the name implies, this law requires an employer to grant a healthy and safe workplace. According to the provision of this law, an employer requires to provide

1. Adequate and safe plant and equipment.
2. Safe and competent employees.
3. Safe workplace and premises.
4. Safe work system.

In addition to aforementioned points, this law also put some duties over employees that are mentioned hereunder:

1. Employees also must be careful and responsible for their own health and safety.
2. In order to ensure existence of proper safety and health related requirements, employee must co-ordinate with employers.

The Importance of Employment Contracts

Further these requirement are not limited up to only health and safety area but also expects to cover other issues such as harassment, bullying and stress.

Some duties are implied in relation to management of employees at work. These duties have their high significance as they bind an employer to provide a suitable environment to employee. Every issue that an employee can face during the course of performance of this/her duty cannot be covered under employment contract, therefore implied duties covers such aspects. An employment relation covers the provision related to fiduciary duties. In a situation where something has left to be included under employment contract, implied duties provides safeguard to employees as well employers. Management of employees is a wider term and the same binds an employer and employee to work ethically even in the situation where nothing is mentioned about impacts of contravention of liabilities. In conclusion, this can be stated that implied duties are very helpful in the course of management of employees at workplace.

European Convention on Human Rights covers the provision related to establishment and development of association. Article 11 of the previously mentioned convention provides the protection to the right of Freedom of Assembly and Association (acas (b), 2018). This article gives permission to an individual to become the part of a group and to receive detriment in result. Such permission refers to the “Freedom of Association” (Equality And Human Rights Commission (b), 2016). Following are the principals that Article 11 provides on the subject Freedom of Association:-

1. Everyone has a right to create or join groups and associations including trade unions in order to protect his/her rights.
2. A person must not use his/her rights provided under this article in a manner that defeat the values of society and put the national security in danger.

According to the provisions of Article 11, a person can join trade union and further such union will be eligible to represent that employee in case of any disputes (Schabas, 2015). In this situation, this is also necessary to mention that the mentioned trade union must be recognized. Further, the law of freedom of Association granted and recognized under Article 11 will not be applicable to members of armed forces, civil services, and police department.

Main requirements of unfair dismissal law

Unfair dismissal is a situation where employers dismiss an employee without any reasonable cause. Employees have some rights related to protection of their employment under various employments law. The Employment Rights Act 1996 is the legislation that defines such rights. Requirements for unfair dismissal can be understand by the situation where requirements of fair dismissal remain absence. The said legislation prescribed 5 situations where dismissal of an employee will be fair. These circumstances are-

1. Capability:-It was held in the case DB Schenker Rail (UK) Ltd v Doolan UKEATS/0053/09/BI that if an employee is not physically suitable for the concerned jib then employer has right to dismiss such employees. In this case employee named Doolan got sick and after medical examination it has come into knowledge that if he will continue the job then probably he would be suffer from stress (Betts, 2018).
2. Conduct:- Situations where an employee does misconduct during his job, then also employer can dismiss such employee. Here this is to mention that misconduct must be proven on the part of employee.
3. Redundancy: – As earlier mentioned that redundancy is a situation where role of employee does not remain any more useful for employer. Hence, in this situation after providing necessary way out to employee, an employer can dismiss him/her.
4. Statutory Ban:- It is mentioned under The Employment Rights Act 1996  that a situation where it does not remain possible for an employer to continue with an employee because of statutory requirement, then it will be lawful to dismiss the employee.
5. Other substantial reason:- Apart from aforementioned situations, if any other circumstances has arises where it seems to be lawful to dismiss an employee, then by following the law of natural justice an employer can dismiss the employee (Legislation. Gov.uk, 2018).

Changing employment contracts

Serious disciplinary meeting and grievance hearings are part of the procedure set out under Acas Code of Practice: Disciplinary and Grievance Procedures. At every disciplinary meeting, employees have right to be accompanied by a colleague or by a trade unions (acas (c), 2013). This is notable here that an employee is not allowed to be accompanied by a lawyer. However, this rule has an exception, i.e. in the situation where a matter can have a serious impact on the career of an employee, then in such situation; an employee can take legal representation.

In the case of Toal and another v GB Oils Ltd UKEAT/0569/12, it was held that available code was not accurate in the views of law; hence, in the recent years ACAS has amended the previously mentioned code of practice. The revised code defined the scope of employees right to be accompanied in respect of disciplinary meeting and grievance hearings. According to the provisions of this amended code:-

1. To exercise the right to be accompanied, an employee must make a reasonable request. Such reasonability will depend on the circumstance to each case.
2. An employee has liberty to choose companion of his/her own choice.
3. In case of non-availability of companion chosen by the employee, employer will postponed the hearing subject to the conditions provided in the respective code.
4. Powers of companion are extended to the limit of addressing the hearing to sum up the case and respond on behalf of employee. However, companion is not given the power to answer on behalf of the employee (acas (d), 2018).

Afore mentioned powers are the scope of right to be accompanied provided to employees under Acas Code of Practice: Disciplinary and Grievance Procedures. However, this is required on the part of employees that they must use such rights for the genuine purposes.

References

acas (a). (2018) Collective consultation on redundancies. [online] Available from: https://m.acas.org.uk/media/pdf/l/2/pdp-collective-consultation-on-redundancies-accessible-version-July-2011.pdf [Accessed on 16/07/2018]

acas (b). (2018) The Human Rights Act. [online] Available from: https://www.acas.org.uk/index.aspx?articleid=4898 [Accessed on 15/07/2018]

acas (c). (2013) Who can accompany workers to grievance hearings? [online] Available from: https://www.acas.org.uk/index.aspx?articleid=4581 [Accessed on 16/07/2018]

acas (d). (2018) Code Of Practice On Disciplinary And Grievance Procedures. [online] Available from: https://www.acas.org.uk/media/pdf/f/m/Acas-Code-of-Practice-1-on-disciplinary-and-grievance-procedures.pdf [Accessed on 16/07/2018]

Betts, G. (2018) Unfair Dismissal. [online] Available from: https://www.buckles-law.co.uk/site/services_for_business/srvbiz_employment/unfair_dismissal/ [Accessed on 16/07/2018]

Capper Pass Ltd v Lawton [1976] IRLR

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

Equality Act, 2010

Equality and Human Rights Commission (a). (2018) Equal pay for equal work: what the law says. [online] Available from: https://www.equalityhumanrights.com/en/advice-and-guidance/equal-pay-equal-work-what-law-says#h2 [Accessed on 16/07/2018]

Equality And Human Rights Commission (b). (2016) Article 11: Freedom of Assembly And Association. [online] Available from: https://www.equalityhumanrights.com/en/human-rights-act/article-11-freedom-assembly-and-association [Accessed on 15/07/2018]

Essack, Y. (2018) Roles and Responsibilities of an Employment Tribunal. [online] Available from: https://toughnickel.com/business/Roles-and-Responsibilities-of-an-Employment-Tribunal [Accessed on 16/07/2018]

Gov.Uk. (a). (2018) Discrimination: your rights. [online] Available from: https://www.gov.uk/discrimination-your-rights [Accessed on 10/08/2018]

Gov.Uk. (b). (2018) Business transfers, takeovers and TUPE. [online] Available from: https://www.gov.uk/transfers-takeovers [Accessed on 16/07/2018]

Health and Safety at Work Act 1974

high performance consultancy. (2018) More Haste, Less Speed?  The Importance of Getting it Right. [online] Available from: https://www.highperformanceconsultancy.com/2017/09/26/employment-tribunals-importance-getting-right/ [Accessed on 16/07/2018]

Legislation. Gov.uk. (2018) Employment Rights Act 1996. [online] Available from: https://www.legislation.gov.uk/ukpga/1996/18/part/X [Accessed on 16/07/2018]

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

Schabas, W.A. (2015) The European Convention on Human Rights: A Commentary. United states of America: Oxford University Press.

Springboard Sunderland Trust v Robson [1992] IRLR 261

Taylor, S. and Emir, A. (2012) Employment Law: An Introduction. United Kingdom : Oxford University Press.

The Employment Rights Act 1996

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

totaljobs. (2018) What is redundancy? [online] Available from: https://www.totaljobs.com/careers-advice/redundant/what-is-redundancy [Accessed on 16/07/2018]

Undertakings (Protection of Employees) Regulations 2006

United Bank Ltd v Akhtar [1989] IRLR 507, EAT

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

Working Time Regulations 1998

XpertHR. (2018). What is “employee liability information” under the TUPE Regulations 2006? [online] Available from: https://www.xperthr.co.uk/faq/what-is-employee-liability-information-under-the-tupe-regulations-2006/114644/ [Accessed on 16/07/2018]