Employment Law

Employment Law deals with the rights and obligations of employees, self-employed, workers and Job seekers in the UK. Employment tribunals have jurisdiction to hear claims arising out of breaches of most aspects of the employment relationship for example Unfair dismissal, Wrongful dismissal, Redundancy payments, Discrimination claims, Equal pay claims and Protection of wages claims etc.

The dismissal of an employee will be unfair where the employer does not have a valid reason which justifies the dismissal of such employee. The valid reasons provided by the Employment Rights Act 1996 are capability, conduct, redundancy, illegality and some other substantial reason which justifies the dismissal.

Automatically Unfair Reasons

Many reasons for dismissal fall within the category of ‘automatically unfair’ including following;

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A contract of employment between an employer and the employee is essentially a contract for either fixed term or continuous term. Generally, the employment contract expressly states, and employee and employer agree on the terms which will dictate the terms of the employment.

Where an employer terminates the employment contract in breach of an express term or before the expiry of the contract, or in any other improper way, such dismissal will be deemed as wrongful dismissal.

Wrongful dismissal also includes constructive dismissal, which occurs when the employer commits a repudiatory breach of contract which the employee accepts by leaving the employment.

Breach of contract/termination of the contract

There are several ways in which the contract of employment may be terminated at common law that is by a supervening event; such as under a notice given by either party; breach; dismissal; agreement; performance and frustration.

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Constructive Dismissal

Constructive dismissal is when an employer acts in a way in which their ethic affects the work of their workers or a single worker on occasion. This could include changing the work environment or adding policies with the intent of attempting to get an employee to resign.

S.95 Employment Rights Act 1996 states that Constructive dismissal occurs when “the employee terminates the contract under which he is employed (with or without notice)”

Example

Andy works at M&S and he can only work 6 hours a day because he has to pick up his son from school. Andy’s management has asked him to work further hours and to become more involved with the team at work. Andy says this isn’t possible due to his personal obligations. Andy’s manager then adds a new policy which states the shortest shifts are now 8 hours. Andy has no other choice but to resign.

The Equality Act 2010 speaks of discrimination as two distinct concepts:

  • Direct and
  • Indirect discrimination.

Direct Discrimination

  • Direct discrimination cannot be justified under any circumstance.
  • Direct discrimination arises when an employer treats an employee differently or less favourably than another based on one or more of the protected characteristics.

The protected characteristics are:

  1. Age,
  2. Disability,
  3. Gender reassignment,
  4. Marriage and civil partnership,
  5. Pregnancy and maternity,
  6. Race,
  7. Religion or belief,
  8. Sex,
  9. Sexual orientation.

Example

If an employer chose to not hire, train or give the same opportunities as anyone else based on any of the characteristics above.

It would have to be shown that the employer chose to not give the same opportunities as the other employees based on this characteristic.

Example

A saleswoman informed her employer that you want to spend the rest of your life living as a man. As a result of this, she was moved to a role without client contact against her wishes.

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What is Arbitration?

  • Arbitration is a well-established way used to end disputes.
  • Arbitration provides parties with a choice to settle the dispute without litigation.
  • Arbitration takes place out of the courtroom: the two parties involved select an impartial third party (known as an arbitrator) and both parties agree in advance to comply with the arbitrator’s award.
  • Both sides then participate in a hearing where each side can present evidence and testimony.

An arbitrator’s decision is usually final and the courts very rarely revisit the case once the arbitrator has made their decision.

Key Points of Arbitration

  • Arbitration is where an impartial person makes a decision in relation to a dispute.
  • ACAS Arbitration can be used to decide cases. The cases in which an arbitrator can make a decision are in relation to unfair dismissal or claims under the flexible working legislation.
  • Arbitration is more commonly used for employment-related disputes, however, it can also be used to settle individual disputes.
  • Arbitration is an alternative to going to court, however, due to arbitration being voluntary both sides must agree to abide by the arbitrator’s decision.

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The law defines harassment as ‘unwanted conduct related to a relevant characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual’.

Harassment may include bullying behaviour and refers to cruel treatment that is related to a protected characteristic that is listed in the Equality Act 2010 as

  • Age,
  • Sex,
  • Disability,
  • Race,
  • Gender,
  • Religion,
  • Sexual Orientation.

Harassment is specifically covered in the Equality Act of 2010. This section covers three types or forms of harassment:

Related to Protected Characteristics

A person harasses another if:

(a) A engages in unwanted conduct related to a relevant protected characteristic, and

(b) The conduct has the purpose or effect of:

  • Violating the victim’s dignity, or
  • Creating an intimidating, hostile, degrading, humiliating or offensive environment.

Sexual Harassment

EA 2010 S. 26 (2) A also harasses B if:

  • A person sexually harasses another if they engage in unwanted conduct of a sexual nature, and
  • The conduct has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment.

Less Favourable Treatment Because of a Person’s Reaction to Harassment

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Right to leave includes following leaves

  • Maternity Leave 
  • and Annual
  • Holiday Leave
  • Employer Breach
  • Statutory
  • Maternity Pay (SMP)
  • Parental Leave
  • Purpose of the Leave
  • Ordinary Paternity Leave (OPL) 
  • OPL Notice
  • Additional Paternity Leave (APL)
  • Eligibility Criteria for (APL)
  • Shared Paternal Leave and Pay
  • Statutory Paternity Pay (SPP) 
  • Eligibility to receive Ordinary Statutory Paternity Pay (OSPP)
  • Notice and Evidential Requirement for an (OSPP)
  • Eligibility to receive Additional Statutory Paternity Pay (ASPP)
  • Notice and Evidential Requirement for an ASPP
  • Adoption Leave and Pay 
  • Other Available Leaves

 Maternity Leave

There are two types of Maternity Leaves:

  1. Ordinary Maternity Leave (OML): which is 26 weeks of statutory leave available for the employee who gives birth, regardless of the length of the time that they have been working for. Remember that:

Note: The statutory maternity pay (SMP) depends on the salary and the duration of employment.

  1. Additional Maternity Leave (AML): Which is 26 weeks further to the Ordinary Leave (OML).

During these leaves, the employee shall benefit from all the contractual work offered by the employer except to remuneration.

Example

Lisa has requested 26 weeks of maternity leave. As part of her employment contract, the car she uses is under remuneration and for business use only. Lisa is not allowed to use the company car without a specific request to her employer.

Maternity Leave and Annual Holiday Leave

The annual holiday leave entitlement continues to accrue during OML and AML. In addition, if the annual holiday could not be taken due to Maternity Leave, the employee has the right to carry over unused holiday entitlement to the next holiday year.

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The relationship between immigration and the right to an employment or work in the UK is complicated. The employment visa includes the following
  • Tier 2 Visas
  • Tier 5 Visas
  • Tier 4 Visas
  • Switching between Visa Categories
  • 2017 Changes to Immigration Employment Rules
  • Applying for a Sponsorship Licences

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A non-competing agreement sets post-employment, employment and work restrictions on an employee. Non-competing agreements are aimed at safeguarding the employer’s trade and financial interests, including intellectual property rights, and trade secrets. These agreements also restrict former employees from spring boarding i.e. setting up the same business, within the same geographical area and pouching the clients and existing employees of the former employer.

The benefit to the Employer

The benefit to the employer is by providing them with:

  • Greater assurance that the company’s intellectual property (IP),
  • Confidential resources,
  • Proprietary information will not be made available to or used by a competitor

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‘Gender pay gap’ refers to the difference between the average hourly wage of female employees and male employees within the workplace. This is different from Unequal Pay, which is the difference between male and female pay when working in the same role, which is something that has been illegal since 1970 since the introduction of The Equal Pay Act.
The Equality Act 2010
With the introduction of The Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017, most companies are obliged to report the statistics of their average pay for male and female employees, and the bonus pay amongst their male and female employees.
Data shows that a shocking 78% of companies pay male employees more, with the likes of Barclays Bank paying (on average) their female employees a mere 27 pence for every pound (on average) paid to a male employee.

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Redundancy occurs in three main situations:

  • Cessation of business – job redundancy
  • Reduction in work at the place of employment – Place of work redundancy
  • Reduction in the requirement for employees to do work of a particular kind – employee redundancy

 Reduction in work at the place of employment – ´place of work redundancy´.

Here, the place where the employee is employed is being relocated. There were, in the past, difficulties in determining whether ‘place of work’ is where the employee could be required to work according to the contract of employment (the ‘contractual’ test), or alternatively where the employee actually works (the ‘factual’ test).

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Practical Guide to Start Employment Claim

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