Employment Law Flashcards
Historical Evolution
- Prior 70s: no employment legislation in UK with exception of basic health/safety regulations & children employment
- T&Cs were negotiated by employers and individuals (employment contracts) with trade unions (collective agreements), former were legally enforceable and the latter not
- After 70s: specialist labour law courts called industrial tribunals (re-named employment tribunals) were established, individuals and collective employment relationships now have much regulation
Rights of employed and self-employed
- Discrimination on sex, race, disability
- Discrimination on sexual orientation
- Discrimination on religion/belief
- Discrimination on age
Rights applied to workers but not independent contractors
- Equal pay for equal work
- Limitations on unauthorised deductions from pay
- Basic health and safety rights
- National minimum wage
- Working Time rights
- Data protection rights
- Time off for family emergencies
- Transfer of undertakings (TUPE) rights
Rights accrued to employees from start of employment
- Right to section one statement (Set main terms and conditions)
- Right to itemised Pay statements
- statutory sick pay (SSP)
- Time of for public duties
- 52 weeks maternity leave
- Main trade union rights
- Minimum notice period
- right to request flexible working
- Rights for fixed term employees
Rights accrued to employees over time
- statutory maternity pay (after six months)
- Paternity leave (after six months)
- Unfair dismissal rights (after two years)
- Parental leave (after one year)
- For fixed term employment rights (after four years)
Two hurdles before bringing cases to tribunal
- prove their employment status
2. prove that they have completed a sufficiently long period of continuous service with their employer
Binary divide
Distinction between ‘contract of service’ and ‘contract for services’, largely criticised in the UK
Increasing number of grey areas
- Sub-contractors employed long-term or regular basis
- casual workers
- homeworkers
- agency temps
- apprentices
- office holders
- domestic workers
Gig economy
Uber, deliveroo. distinction between workers and self-employed - failed to show entitlement to full employee status
The multiple test
Courts apply this to determine if there is a contract of employment, they look for a range of factors to make a distinction between a worker and employee
Mutuality of obligation
To decide whether someone is or not and employee-involving casual staff
EU’s equal treatment framework directive
- Race, ethnicity and national origin (July 2003)
- Disability (Dec 2006)
- Sexual orientation (Dec 2003)
- Religion or belief (Dec 2003)
- Age (Dec 2006)
Equality act 2010
Harmonised terminology across ‘protected characteristics’ and enhanced some rights, it didn’t substantially increase rights in significant areas of principle
Other UK/EU laws
- trade union membership
- whistleblowers
- fixed-term employment
- part-time employment
- agency employment
- former convicted offenders
Four types of discrimination in Equality Act 2010
- direct discrimination
- indirect discrimination
- victimisation
- harassment
First sex discrimination laws
Two major acts of parliament:
- the equal pay act 1970
- the sex discrimination act 1975
These were amended and consolidated into EA2010, basic legal principles remain
Sex discrimination law is concerned with non-contractual issues, prevention of adverse treatment that occurs in workplace:
- Recruitment decisions
- Promotion decisions
- Access to training/development opportunities
- redundancy selection
- dismissals
Prerequisites of sex discrimination
- applies to all workers, not restricted to employees
- not necessary to serve qualifying periods
- everyone in paid work, job applicant and former staff are covered
- claimant only needs to establish facts that are presumed to be unlawful discrimination (burden of proof shifts to respondent)
- not unlawful to treat differently; detriment must be suffered
Issues on grounds of race, sexual orientation and belief
- how do you define distinct ethnic groups?
- what beliefs are included/not included in the law?
- what genuine occupational qualifications might possibly justify refusing gays?
- EA2010: discrimination by association and perceived discrimination are covered - can be traced back to four types of unlawful discrimination
Discrimination on grounds of disability and age - principles
- existence of defence for employers deploy in cases of direct discrimination
- court must be satisfied that employer was pursuing ‘a proportionate means of achieving a legitimate aim’
- direct age/disability discrimination lawful in Europe if employer has genuine/good business reason to explain actions
Unfair dismissal law - 3 types of dismissal that ex-employees can take to court
- Wrongful dismissal
- Constructive dismissal
- Unfair dismissal
Different reasons for dismissal under 3 headings (employer’s side)
- Automatically unfair
- Automatically fair
- Potentially fair
Prerequisites of unfair dismissal cases
- Potentially fair reasons: court assesses whether employer acted reasonably
- law only extends to employees, other forms of contracts are not included
- except for automatically unfair dismissals, employee must complete at least 2 years of service to bring case to court
- person has to be dismissed (fired vs resignation), burden of proof is on ex-employee
Automatically unfair reasons - list
- dismissal for pregnancy/maternity
- dismissal for health/safety reason
- because of spent conviction
- for refusing to work on Sunday
- for trade union reason
- for taking official industrial action
- in contravention of the part-time workers or fixed employees’ regulations
- for undertaking duties as occupational pension fund trustee, employee representative, member of EWC or in connection with Jury
- for asserting statutory right (Employment Rights Act, Working Time Regulations, National Minimum Wage, Public Interest Disclosure Act, Information and Consultation of Employees Regulations, right to request flexible work, right to time off for dependent, right to adoptive, parental or paternity leave, right to be accompanied at disciplinary and grievance hearings, claiming working tax credits)
Situations in automatically unfair cases
- if claimant shows reason clearly, claimant wins an there is no further consideration of reasonableness
- 2 situations remain in which dismissal is automatically fair (claimant loses and there is no consideration): Unofficial strikers and reasons of national security
Potentially fair reasons
- capability (performance or ill-health)
- misconduct
- redundancy
- statutory bar
- other substantial reason
- ppl engaged in industrial action - after 12 weeks passed
- TUPE dismissals where there is an economic, technological or organisational reason
Establishing reasonableness of potentially fair reasons, the tribunal looks at:
- procedure used
- how consistent employer was in treating the reason as sufficient reason for dismissal
- any mitigating factors
2 key issues in misconduct cases
- Was employee guilty of gross or ordinary misconduct?
2. Was an acceptable procedure used?
Consequences of Ordinary misconduct vs gross misconduct
Ordinary: formal warnings given prior dismissal with notice
Gross: lawfully result in dismissal without notice
Ill health dismissal
Employers are expected to warn employees at least once that they will be dismissed after certain period if they don’t return to work.
Expected to take account of any medical evidence suggesting that a return to work in the foreseeable future is likely
- Care must be taken to carry out ill health dismissals to ensure that disability discrimination law is not breached
Some exceptions to dismissals
Not quite lawful to dismiss for poor attendance when there is no single condition that explains poor absence
Three options for successful claimants
- Re-instatement
- Re-engagement
- Compensation
Over 95% of cases end with compensation pay, sum is subject to maximum limits
- Basic award (age, length of service, salary)
- Compensatory award (up to a year’s salary capped at £78,962)
- Additional award (up to 12 months pay capped at £479 per week)
- Caps rise broadly in line with inflation (April each year)
List the Protected Characteristics
- sex
- sexual orientation
- trans-gender
- marital status/civil partnerships
- pregnancy/maternity
- race, ethnicity, national origin
- religion, belief
- age
- disability
