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Business and Employment Law > 15: Recruitment and Employee's Rights > Flashcards

15: Recruitment and Employee's Rights Flashcards

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1
Q

What checks might an employer carry out for a candidate?

A

Disclosure and barring checks (DBS checks), checking qualifications, and the right to work in the UK.

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2
Q

What legislation prohibits discrimination during recruitment and employment?

A

Equality Act 2010.

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3
Q

What actions can an individual take under EA 2010 for discrimination?

A

Bring a claim against an employer or potential employer for discriminating against them.

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4
Q

How many sets of protected characteristics are there?

A

Nine sets.

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5
Q

List the protected characteristics under EA 2010.

A

Age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

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6
Q

What are the criteria for a person to have a disability under s6 EA 2010?

A

A physical or mental impairment and a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

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7
Q

Which conditions are not considered disabilities under EA 2010?

A

Kleptomania and drug addiction - not protected characteristics.

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8
Q

Is obesity protected as a disability?

A

No, but it may result in a disability if it impairs the ability to participate in work life on an equal basis with other workers.

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9
Q

Which illnesses and conditions does EA 2010 specifically include as disabilities?

A

HIV, cancer, and multiple sclerosis.

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10
Q

What does race include under s9(1) EA 2010?

A

Colour, nationality, and ethnic or national origins.

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11
Q

How is religion or belief defined under s10(1) EA 2010?

A

Any religion or lack of religion; any religious or philosophical belief or lack of belief.

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12
Q

How is sexual orientation defined under s12(1) EA 2010?

A

A person’s sexual orientation towards persons of the same sex, the opposite sex, or either sex.

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13
Q

What is direct discrimination under EA 2010?

A

Treating a person less favourably because of a protected characteristic.

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14
Q

Can direct discrimination be justified?

A

No, direct discrimination cannot be justified except on the basis of age if it is a proportionate means of achieving a legitimate aim.

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15
Q

What is indirect discrimination?

A

A provision, criterion, or practice that puts people with a protected characteristic at a disadvantage compared to others, which can be justified if proportionate.

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16
Q

Is discrimination based on pregnancy and maternity direct or indirect discrimination?

A

Always direct discrimination, not indirect discrimination.

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17
Q

Give examples of indirect discrimination in the workplace.

A
  • Christian employee disadvantaged by Sunday working requirement.
  • Female airline pilot’s childcare responsibilities
  • Minimum height requirement for police force.
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18
Q

How can indirect discrimination be justified?

A

If it is a proportionate means of achieving a legitimate aim, like ensuring physical capability for a job.

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19
Q

What is harrassment?

A

When someone engages in unwanted conduct violating the victim’s dignity or creating an intimidating environment for them.

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20
Q

What must the conduct be related to in order to be considered harassment?

A

It must be in relation to a protected characteristic or of a sexual nature.

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21
Q

Can a victim be treated less favourably for rejecting harassment?

A

Yes, this is also considered harassment.

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22
Q

Which protected characteristics does harassment apply to?

A

All except marriage/civil partnership, pregnancy, and maternity.

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23
Q

Can an employer be guilty of harassment by displaying offensive material?

A

Yes, if it makes the workplace offensive (e.g., displaying a topless calendar).

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24
Q

Can a person without a protected characteristic be a victim of harassment?

A

Yes, if they are subjected to offensive conduct because of the protected characteristic of others, e.g. a white worker who sees a black worker being subjected to racist language could have a harassment claim.

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25
Q

What is victimisation?

A

When a person is treated less favourably for enforcing a right to protection.

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26
Q

What does s39 EA 2010 prohibit?

A

Victimisation of both job applicants and existing employees (and other workers).

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27
Q

What does EA 2010 protect disabled persons from?

A

Discrimination arising from a disability, i.e. being treated unfavourably because of something arising due to their disability.

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28
Q

When can discrimination arising from a disability be justified?

A

If the treatment is a proportionate means of achieving a legitimate aim.

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29
Q

What must employers do for people with disabilities?

A

Make reasonable adjustments free of charge.

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30
Q

What are the three requirements for reasonable adjustments in the workplace?

A

Take reasonable steps to:
1. Avoid disadvantage due to a provision, criterion, or practice
2. Avoid disadvantage due to a physical feature.
3. Provide auxiliary aids to avoid disadvantage.

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31
Q

What must be considered when making adjustments for disabled employees?

A

Practicality, cost, and employer’s financial and other resources.

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32
Q

What is prohibited discrimination related to pregnancy and maternity?

A

Treating a woman less favourably because of pregnancy, illness suffered due to it, maternity leave, or exercising her rights to maternity leave.

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33
Q

What does EA 2010 guarantee regarding pay?

A

Equal pay for equal work and work of equal value.

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34
Q

When is it not discriminatory to impose an occupational requirement?

A

When it is a proportionate means of achieving a legitimate aim.

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35
Q

What should employers use to ensure all job applicants compete on equal level?

A

A standard application form.

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36
Q

What must employers ensure about the application form questions?

A

Use objective criteria and avoid asking for details like date of birth unless justified.

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37
Q

What does s60 EA 2010 generally prohibit employers from asking about?

A

Health-related questions before offering a job.

38
Q

What allows a limited form of positive discrimination under EA 2010?

A

Choosing a candidate based on a protected characteristic if two candidates are equally qualified.

39
Q

What are the pre-employment checks?

A

Obtaining references
DBS checks
Right to work checks
Qualifications checks

40
Q

What is required for applicants working with children or vulnerable adults?

A

Disclosure and Barring Service (DBS) checks.

41
Q

When can an employer refuse employed because of a spent conviction?

A

Only if it is relevant to the job, e.g. driving conviction when applying for a job as a driving instructor.

42
Q

What is important for employers to provide when giving references?

A

Ensure the reference is fair and accurate, considering legal implications (discrimination, defamation, negligent misstatement, duty of care).

43
Q

Is there a legal obligation to provide a reference for an employee or ex-employee?

A

No, employers may refuse to provide a reference.

44
Q

What must an employer avoid when providing a reference?

A

Discrimination, defamation, and negligent misstatement.

45
Q

What duty does an employer owe when preparing a reference?

A

A duty of care to take reasonable care in preparing it, ensuring accuracy of the facts.

46
Q

What should employers inform applicants about data protection?

A

If details of unsuccessful applicants are kept for future appointments, they should be informed and given an opportunity to remove their details.

47
Q

Is there a requirement for a contract of employment to be in writing?

A

No, there is no general requirement.

48
Q

What begins the contract of employment?

A

The offer of a job is accepted by the new employee.

49
Q

What does s1 Employment Rights Act 1996 (ERA 1996) require employers to provide?

A

A written statement of certain terms of the contract to all workers on the first day of employment, (even thought here is no need for a written contract.)

50
Q

What is the written statement required by ERA 1996 not considered as?

A

It is not itself a contract but may be valuable evidence of the contract’s terms.

51
Q

What details must be included in the written statement according to ERA 1996?

A

Names of employer and worker,
employment date,
pay details,
hours of work,
holiday entitlement,
job title,
probationary periods, etc.

52
Q

What does the Working Time Regulations 1998 (WTR 1998) implement?

A

The EU’s Working Time Directive.

53
Q

What are the main provisions of WTR 1998?

A

48-hour limit on average weekly working hours,
entitlement to rest breaks, and
entitlement to paid annual leave.

54
Q

Is the 48 work week a firm limit?

A

No, there is no absolute prohibition on a worker working longer than 48 hours in any week - the main requirement is for the employer to take necessary steps to avoid this and maintain records of hours worked.

55
Q

Can a worker’s time spent travelling count as working time?

A

Yes, if it is time during which they are at the disposal of their employer.

56
Q

Does the time a mobile worker spends travelling from home to a customer’s premises count as working time for the purposes of WTR 1998?

A

Yes, it does.

57
Q

What is the employer’s duty regarding rest breaks under WTR 1998?

A

Ensure daily rest period of 11 hours,
weekly rest period of 24 hours, and
shift rest break of 20 minutes for shifts longer than six hours.

58
Q

What is the annual leave entitlement under WTR 1998?

A

5.6 weeks per year, subject to a maximum statutory entitlement of 28 days.

59
Q

Are the rest times under WTR 1998 serious?

A

Yes, the worker can claim compensation if without these breaks, or can bring a claim if they are penalised because they took breaks.

60
Q

Is there a statutory right to time off on public holidays?

A

No, there is no statutory right to time off on public holidays.

61
Q

Can employers pay workers money in place of their holiday entitlement?

A

No, unless employment is being terminated.

62
Q

What must employers provide according to s1 ERA 1996 regarding pay?

A

A written statement of particular terms including rate of pay and payment intervals.

63
Q

What must be included in an itemised pay statement?

A

Gross and net pay, deductions for tax and national insurance, and how payment is made.

64
Q

Can an employer deduct from pay?

A

Employers must not make deductions unless authorised by statute, contract, or worker’s express consent.

65
Q

What is Statutory Sick Pay (SSP)?

A

A fixed rate paid to employees who are sick and unable to work for four or more consecutive days and earn above a statutory threshold.

66
Q

What are all wages subject to?

A

The minimum wage under National Minimum Wage Act 1998 (NMWA 1998).

67
Q

What is important to consider when calculating if a worker has received the minimum wage?

A

The total number of hours worked over a specified reference period (usually one month).

68
Q

How is the full adult rate of minimum wage referred to?

A

As the living wage.

69
Q

What can a worker do if they believe they have been paid less than the national minimum wage?

A

Bring a claim for unlawful deduction from wages.

70
Q

How can an employer defend against an equal pay claim?

A

By showing that the difference in pay was because of a material factor not related to sex.

71
Q

What duty do employers have regarding pension provision?

A

A duty to enrol eligible workers in a qualifying pension scheme.

72
Q

How many categories of family-friendly employment laws are there?

A

Six.

73
Q

What are the six main categories of family-friendly employment laws?

A

Maternity rights,
paternity rights,
adoption rights,
parental leave,
leave for dependants, and
flexible working rights.

74
Q

When do maternity rights begin?

A

When the woman becomes pregnant.

75
Q

How long is statutory maternity leave according to the Maternity and Parental Leave etc. Regulations 1999?

A

52 weeks, regardless of length of service.

76
Q

What is the statutory maternity pay (SMP) duration and requirement?

A

Paid for 39 weeks; the woman must have been continuously employed by the same or an associated employer for at least 26 weeks by the 15th week before the EWC (expected week of confinement).

77
Q

How many people do adoption rights apply to?

A

Only one person may elect to be the adopter for any child (the other will qualify for paternity rights/parental leave).

78
Q

What is the statutory right to ordinary paternity leave?

A

Two weeks’ leave taken within eight weeks (56 days) of the baby’s birth or the date an adopted child is placed with the employee.

79
Q

Who is eligible for ordinary paternity leave?

A

Both male and female employees who have responsibility for the child’s upbringing, are the spouse or partner of the child’s mother or adopter, and have been continuously employed for at least 26 weeks by the end of the 15th week before the EWC.

80
Q

What is shared parental leave (SPL)?

A

Parents sharing leave and pay following the birth or adoption of a child. Not compulsory, intended to provide more flexibility.

81
Q

What must a mother do before taking shared parental leave?

A

Take a minimum of two weeks’ compulsory maternity leave following the birth (four if she works in a factory).

82
Q

What is ordinary parental leave?

A

Statutory unpaid leave for employees with responsibility for a child, can include birth parents, adoptive parents, civil partners, or guardians.

83
Q

What is the maximum duration of ordinary parental leave per child?

A

18 weeks.

84
Q

What is leave for dependants?

A

A reasonable amount of unpaid time off work to deal with unexpected emergencies affecting dependants and make long-term arrangements.

85
Q

Who qualifies as a dependant under leave for dependants?

A

Spouse or civil partner, child, parent, or someone living in the same household (excluding tenants, lodgers, boarders, and employees).

86
Q

What does the right to apply for flexible working allow?

A

Eligible employees to request changes to hours, times of working, and working from home.

87
Q

When can an employer refuse an application for flexible working?

A

For specified reasons like additional cost, detrimental effect on ability to meet customer demand, or inability to reorganize work among other staff. Employers must consider the application reasonably.

88
Q

What must the employer do if they refuse the application for flexible working?

A

Provide the grounds for refusal in writing.

89
Q

What is the process if the application for flexible working is accepted?

A

The employer must confirm the decision in writing and discuss the application with the employee.

90
Q

What should employers do within three months of receiving the application for flexible working?

A

Communicate the decision to the employee.

Business and Employment Law (16 decks)

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