employment law. © university of wales, aberystwyth three main areas anti-discrimination laws (but...

Employment Law

© University of Wales, Aberystwyth

Three main areas

anti-discrimination laws (but these usually cover much more than just employment);

laws governing trades unions and their activities and their relationships with employers;

laws relating to the welfare of individual employees and their relationships with their employers.

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Unlawful discrimination sex; race, colour, ethnic origin; disability; religion (from December 2003); sexual orientation (from December

2003); age (from 2006).

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Major pieces of legislation Equal Pay Act 1970 Sex Discrimination Acts 1975 and

1986 Race Relations Act 1976 Disability Discrimination Act 1995 Employment Equality (Religion or

Belief) Regulations 2003

Equality Act 2010

The characteristics that are protected by the Act age disability gender identity and gender reassignment marriage or civil partnership (in employment only) pregnancy and maternity race religion or belief sex sexual orientation.

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What is discrimination?

direct discrimination: treating one person less favourably than

another purely on grounds of sex or race, etc.; indirect discrimination:

imposing a requirement that:• can be satisfied by a much smaller proportion of the

people from one sex or one racial group than from another;

• cannot be shown to be justifiable by the needs of the job.

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Discrimination on grounds of disability treating a disabled person less

favourably without justification; failing to make a reasonable

adjustment without justification.

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Enforcing anti-discrimination legislation Court action can only be initiated by the

Equal Opportunities Commission (sex discrimination), the Commission for Racial Equality (racial discrimination) or the Disability Rights Commission, except that,

individuals can take allegations of discrimination relating to employment directly to an Employment Tribunal.

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Industrial tribunals (labour courts in other countries) set up to handle cases of unfair dismissal

and discrimination in employment matters brought by individuals;

simpler and cheaper than the ordinary civil courts;

but legal or trade union representation is desirable;

limited powers but can award compensation and order reinstatement;

appeals are possible but rare (and rarely successful).

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A trade union is

“An organisation of workers created to protect and advance the interests of its members by negotiating agreements with employers on pay and conditions of work. Unions may also provide legal advice, financial assistance, sickness benefits and education facilities.”

(ACAS)

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A trade union is recognised by an employer when

it negotiates agreements with the employer on pay and other employment conditions on behalf of a body of workers (known as the bargaining unit). This is called collective bargaining.Recognition can be the result of voluntary agreement between employer and union or it can be statutory, i.e., enforced by law.

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Labour relations (pre 1980) collective bargaining and collective

agreements, not legally enforceable; many strikes, often unofficial; strikes called against the wishes of the

majority of workers; violent picketing; secondary action; management not allowed to manage; restrictive practices and over-manning.

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Trade Unions (pre-1980) unions immune to actions for tort and

breach of contract in relation to ‘trade disputes’;

closed shop; problem of multiple unions and

differentials; driven by a small number of activists; political levy.

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Employment Act 1980 secondary action made unlawful; pickets could only picket their own

place of work; unions encouraged to ballot their

member before taking strike action.

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Employment Act 1982 redefined ‘trade dispute’ as a dispute

between workers and their employer relating “wholly or mainly to terms of employment”;

union legal immunity removed when they authorise unlawful industrial action;

improved rights for workers in closed shops.

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Employment Act 1984 required unions to hold ballots

before taking industrial action; if no ballot held, then the union lost

its immunity from legal action.

http://news.bbc.co.uk/1/hi/uk/3534415.stm

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Employment Acts 1988 and 1990Tinkering at the edges: procedural changes for ballots; unlawful to discriminate on grounds of

membership or non-membership of a union;

union liable for damages arising from unofficial action unless explicitly repudiated;

selective dismissal of strikers permitted.

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Trade Union and Labour Relations (Consolidation) Act 1992

Replaces previous legislation and brings it all together in a single act

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ACAS (Advisory Conciliation and Arbitration Service) founded in 1896; present name and structure date from

1974; mission is “preventing and resolving

problems in the workplace”, through conciliation, mediation and arbitration services;

publish very helpful guides to good practice;

excellent web site.

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Individual employment rights unfair dismissal (Industrial Relations Act 1971); contracts of employment; right not to be discriminated against; maintenance of rights when transferred (TUPE regulations

1981, as amended, resulting from European Acquired Rights Directive, 1977,2001);

right to join a union of your choice or not to join one (Trade Union Reform and Employment Relations Act, 1993);

limits on hours (EU Working Hours Directive 1993, UK Working Time Regulations 1998);

statutory sick pay; ’family friendly’ rights (Employment Relations Act 1999

and Employment Act 2002).

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Trade Union Reform and Employment Relations Act 1993

gives employees the right to join a union of their choice;

permission required to deduct union subscriptions at source;

extends the circumstances in which unfair dismissal can be claimed;

extended maternity provisions.

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Employment Relations Act 1999 equality of treatment for part-time

workers; parental leave and ‘family-friendly’

policies; increased protection against unfair

dismissal; abolished the Commissioner for the Rights

of Trade Union Members and the Commissioner for Protection Against Unlawful Industrial Action.

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Employment Act 2002 paternal leave; adoption leave; dispute resolution; improved Industrial Tribunal

practices; equal pay questionnaires.

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Grounds for fair dismissal conduct capability redundancy statutory requirement something else.

But the employer must follow proper procedures (due process).

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Public Interest Disclosure Act 1998 (PIDA)protects employees who make disclosures about malpractice to their managers

or bodies such as the HSE or the FSA provided the employee has reasonable grounds for the disclosure and it is made in good faith

who make disclosures about malpractice more widely (e.g. to the police, the press or an MP) provided it was not done for personal gain and reasonably believed they would be victimised if they raised it

internally or with a regulator, or reasonably believed there would be a cover-up if they raised

it internally and there was no regulator, or had already raised it internally or with a regulator and nothing

had been done.

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Unfair Dismissal employer’s failure to follow the proper procedures (the

commonest cause!); dismissal for any reason excluded by anti-discrimination

legislation; dismissal for taking part in trade union activities; dismissal for taking action against an employer to enforce

employment rights; dismissal on grounds of pregnancy; dismissal for refusing to do shop or betting work on a

Sunday; dismissal for not being a member of a trade union; and many more.

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Constructive dismissal:

a fundamental breach, by the employer, of an employee’s contract of employment, which effectively indicates that the employer no longer intends to be bound by it.The employee can have recourse to an industrial tribunal as if an actual dismissal had taken place.

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Contracts of employment the fact of employment brings a legal

contract into existence, whether or not it is in writing;

employers must provide employees with a written statement of the main terms of employment;

it is good practice to provide a full, written contract of employment, signed by both employer and employee.

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Express terms and implied terms Express terms are term that are explicit in

the contract. Implied terms that a court will regard as

always existing, even though they are not explicitly stated. They may arise from: statute (e.g. the employer must provide a safe

system of work); common law (e.g. employees must exercise

reasonable care and skill); custom and practice of the industry.

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Employee or self-employed (freelancer, contractor)Pros and cons of being self-employed:

for worker:• more money;• less tax (probably);• more freedom;• no employment rights (security, parental leave, sick pay,

etc.) for employer:

• easier and cheaper to get rid of if money short or no longer needed;

• only paid for what they do;• can hire in expensive specialised knowledge just for when

it is required;• may cause less discontent among regular staff than

employing expensive specialists at high salaries.

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How to tell the differenceThe following factors affect which way you will be treated: do you work for several different organisations? do you find your own work? are you paid per job done or at regular intervals? if you are sick or otherwise unable to do a job, is it up

to you to find someone else to do it? who supplies the tools and equipment you use?

The Inland Revenue, the Department of Social Security, and the courts do not necessarily all treat you the same!

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Useful web sites http://www.equalitydirect.org.uk/map.htm http://www.acas.org.uk/a-z_index.html

Both these sites are run by ACAS and contain many documents describing good practice (as opposed to legal requirements) in anti-discriminatory practice.

http://www.embrase.org.uk/ Good descriptions of the requirements of the EU’s Equal

Treatment Framework Directive 2000/78. http://www.dti.gov.uk/er/regs.htm

Department of Trade and Industry website with a lot of well-written information about employee relations.