Employment Law In UK: A Comprehensive Discussion

MAN3131 Employment Law

Employment Regulations and its purpose

Employment laws, as the name suggests, are the laws which govern the employment of an employee, and also puts out the rules for the employers. In United Kingdom, there are a number of legislations which apply over the different facets of the employment. It is crucial that all these legislations, as become applicable, are followed properly, in order to avoid a breach of the statutory laws. Included in the range of laws are the Equality Act, 2010, the Working Time Regulations, 1998, the Employment Rights Act, 1996, the Employment Relations Act, 1999, and the Employment Act, 2002, amongst the others.

These employment laws govern the relationship which is present between an employer and an employee during the course of employment. Through these laws, assistance is attained in the regulation of the employee rights and of the things which can be expected in a reasonable manner by the employee from their employer. This discussion is focused upon highlighted the different areas of the employment law present in UK. In doing so, the various points which would be highlighted include the purpose of employment law, lawful recruitment, and changes in business, including TUPE and redundancy.

Goals 

The main aim, or as can be stated as its objectives, goals or objectives, of the employment law is to ensure that the people working in workplace and being present their are treated in reasonable and a fair manner. The other purpose of employment law is to ensure that the individuals are treated in a manner which shows natural justice.

The employment law mainly forms a part of the civil portion of the law and where any sort of dispute or conflict is raised in the employment law, these are referred at the very start to the employment tribunals. The hearings which take place in the employment tribunals are informal when they are compared to the higher courts and yet they are given the status as is given to the courts. The verdicts of the employment tribunals can be made an appeal against to the Employment Appeals Tribunal based on the point of law.

When it comes to the appeals from Employment Appeals Tribunal, these can be made in the Court of Appeal and after this stage they can be referred to the Supreme Court, beyond with there is no more courts to appeal in, as the Supreme Court is the highest appeal court in UK. Given that Brexit has already been passed, there is still absence of clear policy on Brexit, and due to these reasons, the laws of European Union continue to apply over UK and this is the reason why the decisions made in the courts of UK, can be referred before ECJ, i.e., the European Court of Justice.

Back in April 2014, the Employment Conciliation Scheme was introduced and the same was made compulsory just one month after that. The purpose of this scheme was to bring down the number of claims being made to the employment tribunal. This scheme provides that the person making the claim is contracted by the Early Support Conciliation Officer and this is done to seek the details of the claims which have been made and at the same time the claimant is asked regarding the process of conciliation.

The role of court system and tribunal

In such cases where a result is not obtained even after making use of this scheme, the individual has the option of making an application before the employment tribunals and once this is done the ACAS gets in contact with both the employer and employee in order to facilitate a settlement as is the purpose of the Early Conciliation Scheme. In such cases, the role of ACAS is to simply mediate upon the matter in place of providing any sort of advice to the parties. In this very process, negotiations are included and this is done through the Enterprise and Regulatory Reform Act, 2013. A point which is crucial in this regard is that when the settlement agreement is put up, care has to be undertaken in doing so. This had been a point of emphasis in the case of Newbury v Sun Microsystems in which it was held by the court that the offer which had the settlement sum was actually binding due to the reasons that it had covered ample amount of details for a person to agree upon the terms, after gaining an understanding on them.

Laws regarding discrimination 

Discrimination is a common term which is meant to denote that a particular individual is given a higher or a lesser preference in comparison to the other person, owing to the particular features which are held by the individual. In UK, the Equality Act, 2010 works against discrimination and through this very act, discrimination on the basis of seven different points is prohibited; the seven types include direct discrimination, indirect discrimination, perceptive discrimination, associative discrimination, harassment, victimization and the third party harassment.

The Equality act puts forth nine protected characteristics based on which the claim of discrimination can be made and included in these nine characteristics are sex, belief or religion, gender reassignment, disability, age, race, marital status or civil partnership, pregnancy or maternity, and sexual orientation. The point of significance here is that the discrimination should never take place in the recruitment and in the selection procedures in employment law context. So, just because a person follows a particular religion or is from a particular race, it should not hinder his selection in the company for higher posts or even his recruitment in the company. As highlighted earlier, the laws of EU are still applicable on UK; and in this context, the discrimination is restricted through the Equal Treatment Directive 2006/54/EC, where there is a requirement of providing all the people with equal opportunity.

The instances of direct discrimination occur where an individual is treated in a manner which can be deemed as less favourable in comparison to the other individuals owing to the protected characteristics held by such individual. Amnesty International v Ahmed brings forth clarity in this regard. In this case, a candidate had not been selected Amnesty International for their Sudan region due to the fear of the life of this candidate. When the matter reached before the Employment Appeals Tribunal, they agreed that the motive here was quite noble; however, this could not deny the presence of direct discrimination in this case.

Settling the cases before and also during the formal legal procedure

The instances of indirect discrimination occur where some policies, rules or practices apply over every person but have the worse impact on some of the individuals when compared to the other individuals. In the case of R v Secretary of State ex parte Equal Opportunities Commission, the proceedings were brought by the Equal Opportunities Commission against the government. In order for the unfair dismissal claim to be brought forth by the employees who worked full time, they had to have completed two years of service. A claim of indirect discrimination was thus brought due to the women facing hardships in making the case of unfair dismissal owing to the higher chance of them being employed in a part time manner for the purpose of looking after their kids and the average provided that he women would have to serve for a longer period in comparison to men. As a result of this, the claim made regarding the undertaken indirect discrimination, had been upheld.

The case of perceptive discrimination is such discrimination which is born due to the thinking of someone holding a protected characteristic in such cases where the individual may not even have such a protected characteristic.  The associative discrimination is related to such instances of discrimination against the individuals which result from the individuals being associated with an individual who holds such protected characteristic. The case of Coleman v Attridge Law saw requests being made by Coleman for the flexible working pattern as her son had been disabled. An argument had been made by Coleman that she had been treated in a manner which was less favourable in comparison to the parent of the children who were not disabled and who could work in a flexible manner. The European Court of Justice made a ruling in favour of Coleman based on the European Employment Framework Directive 2000/78/EC and as a result of this, the case of associative discrimination was upheld.

Harassment is the conduct which is unwanted and which is related to the relevant protected characteristic owing to which there is a violation of the dignity of an individual and the person is made to feel humiliated or degraded.  The case of Strathclyde Regional Council v Porcelli saw two male colleagues being made accountable for direct sex discrimination and for harassment by the tribunal due to the removal of the belongings of Procelli, the equipment being stored beyond her reach, the information being withheld, suggestive remarks being made, and lastly, brushing against her in a deliberate manner.

Third party harassment refers to the things which are attained from a person who is not the employee of company, and a leading example of this is the consumer or client of the company. In such cases, the liability is raised for the employer in such instances where the case of harassment occurs at two or more instances, and where the employer had clear knowledge of such taking place, followed by the failure of the employer in undertaking the requisite steps for the purpose of stopping the same from taking place. Victimization is something which is the unfair treatment being given to the employee, upon them making any compliant or where such an employee supports the grievance which have been initiated under the Equality Act, 2010.

Managing the recruitment and the selection activities

A key part of the employment contracts is the recruitment process. A key requirement in this regard, placed on the employers, is to give written statement to the employee in the matter of initial employment particulars in a time frame of two months from the employment being initiated. The employment contracts can also be undertaken in verbal manner and in such cases the recruitment process has to be undertaken in a careful manner in order to avoid any unwanted verbal commitment being made. The employment contracts have both implied and express terms and both such terms have to be complied with. The implied terms are born from customs, practices, case laws, collective agreements, statue, work rules and confidentiality. The case of United Bank v Akhtar saw 6 days notice made to employee for relocation given rise to a successful claim by the employer owing to the implied term in employment contract of confidence and mutual trust being contravened.

Changing contracts 

Owing to a number of reasons, changes could be required in the employment contract. This includes automation efficiency, economy, business being changed, or the most recent Brexit taking place. The employer may have to extend the trading hours, requiring the shift of employee being increased. For all such reasons, contract needs to be varied, where the first step is to undertake consultation with the employee for getting agreement on change. Upon this being successful, a new employment contract is chalked out.

There are three situations in which redundancy can take place. The first is where the business is intended to be ceased by the employer; the second is one in which the business is intended to be ceased by the employer in location where employee works; and the third is where the demand for the work done by employee declines. When such happens, the ACAS Code of Practice: Disciplinary and Grievance Procedures has to be followed and this is not restricted to the redundancy cases. Also, this procedure includes collective consultation. A list has been provided in the Trade Union and Labour Relations (Consolidation) Act, 1992 which is to be given to the employee by the employer before the consultative process begins. The employer also is under the obligation of looking for alternative and suitable employment for employee in redundancy cases.   

TUPE, or transfer of undertaking, occurs when a part or all of the business is sold by the employer and the same is being transferred to another employer. The Transfer of Undertakings (Protection of Employees) Regulations 2006 provides two types of transfer and these are transfer of service and economic entity services resulted in identity being retained. TUPE’s main objective is to protect the employees upon being transferred, and here also the consultation process has to be undertaken.  

Primary Sources Cases

Amnesty International v Ahmed [2009] IRLR 884 EAT

Coleman v Attridge Law (2008) C-303/06

Newbury v Sun Microsystems [2013] EWHC 2180

R v Secretary of State ex parte Equal Opportunities Commission [1995] 1 AC 1

Strathclyde Regional Council v Porcelli [1986] IRLR 134

Statutes and statutory instruments

Employment Act, 2002

Employment Relations Act, 1999

Employment Rights Act, 1996

Equal Treatment Directive 2006/54/EC

Equality Act, 2010

European Employment Framework Directive 2000/78/EC

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 (2^nd edn, Oxford University Press 2010)

Daniels K, Employment Law: An Introduction for HR and Business Students (3^rd edn, Chartered Institute of Personnel and Development 2012)

Honeyball S, Honeyball & Bowers’ Textbook on Employment Law (14^th edn, Oxford University Press 2016)