EMPLOYMENT LAW
Statutory Dispute Resolution
There are 2 dispute resolution procedures: the employee's grievance procedure and the employer's disciplinary procedure both of which are fraught with difficulties, and are due to be repealed in the not-too-distant future. Failure to follow the procedures has an impact on the ability to take a claim to an employment tribunal and the amount of potential compensation awarded. Failure to follow the procedures could lead to an increase or decrease in any compensation from 10-50 per cent.
Standard Grievance Procedure
Before a complaint can be brought before the Employment Tribunal it is usually necessary for the applicant to have complied with the grievance procedure, which comprises of 3 steps:
1. Written statement
The employee must set out his/her grievance in writing (often called a step one letter). The employee's grievance should be looked into in a fair and unbiased way. The employer should invite the employee to a meeting (sometimes called a hearing) to discuss the problem.
2. The Meeting
The Advisory, Conciliation and Arbitration Service (Acas) have a code of practice which sets out how the employer should carry out a grievance procedure.
If the employee asks the employer beforehand, s/he has a legal right to take a 'companion' (who is a colleague or trade union representative) to the meeting .
The employee should be given notes of the meeting, and copies of any information given by other people. Unless there is a need to investigate further, the employer should tell the employee reasonably quickly what's been decided, and about the employee's right to appeal.
3. Appeal meeting
The employee has a right to an appeal. This is usually heard by a higher level of management. If that isnt possible, the employer could ask an Acas mediator or other independent person to hear it. The appeal hearing is similar to the original meeting.
The employee must wait 28 days (starting from the date of the step one letter) before making a claim to an Employment Tribunal.
Standard disciplinary and dismissals procedure
Failure to follow this procedure will often render any dimissal automatically unfair. The standard disciplinary and dismissals procedure has three stages:
1. Written statement
The employer should put the complaint in writing and set up a meeting, giving the employee sufficient time to prepare; provide copies to the employee of any evidence that may be used at that meeting; be aware that employees have the right to be accompanied at that meeting by a colleague or union representative.
2. The Meeting
The employer should hold the meeting with the employee; inform the employee of any decision made after the meeting and notify them of their right to appeal.
3. Appeal meeting
If the employee wishes to appeal against the disciplinary action that has been decided upon, the employer must invite the employee to a further meeting.
Discrimination
Certain types of discrimination are unlawful. Discrimination on the grounds of gender, marital status, gender reassignment, pregnancy, disability, race, colour, ethnic background, nationality, religion or belief, or age is unlawful.
Unjustified indirect discrimination for the above reasons is also unlawful, where a condition that disadvantages one group of people more than another is applied to a job.
Unfair Dismissal
Dismissal is when the employer, with or without notice, ends the employee's employment. It can also happen when a fixed-term contract isn't renewed or when an employer forces someone to retire. Dismissal can be done verbally or in writing. In order for a dismissal to be fair, the employer must show they have a valid reason for the dismissal, acted reasonably in the circumstances, investigated the situation adequately and followed at least the steps in the statutory minimum dismissal procedure (if it applies). If the employer did not follow the minimum procedure, the dismissal is usually automatically unfair.
If the employer has investigated fairly but come to the wrong conclusion (for example, by getting the facts wrong), this will not necessarily mean the dismissal is unfair.
The employer must be able to show that they've been consistent and have not sacked the employee for doing something that they normally let other employees do.
The employee may be able to claim unfair dismissal if s/he can show that s/he was not told about a relevant company rule or policy by the employer.
In the case of retirement, the need to act reasonably and follow the statutory minimum dismissal procedure will not apply. In that case the fairness of the dismissal will depend on whether your employer complied with the duty to consider working beyond retirement.
Automatically unfair reasons
Some reasons for dismissal are automatically unfair, including:
the employee's used, or attempted to use, a statutory employment right (for example, taking parental leave or the right to written particulars of terms and conditions), because the employee has become pregnant, because of the employee's membership/non-membership of a trade union exercise your statutory rights, exercising rights under the National Minimum Wage Act, complaining about a health and safety problem, reporting a wrongdoing at work ('whistleblowing'), exercising your rights in connection with a statutory grievance or disciplinary procedure, taking part in official industrial action that lasts less than 12 weeks, taking time off for jury service, asking to work flexibly if a right to do so,
exercising rights under the Working Time Regulations.
Potentially fair reasons
A dismissal is 'potentially fair' if it's because of:
the emploee's conduct
the employees ability to do the job
redundancy
retirement (from 1 October 2006)
a legal reason that prevents the employee from doing the job (for example, losing his/her driving licence if a delivery driver)
another substantial reason
If an employee is dismissed while taking part in industrial action that's unofficial or unlawful, s/he may lose the right to claim unfair dismissal.
If the employee has been employed for a year (or pregnant or on maternity or adoption leave), the employee has the right to a written statement of reasons for your dismissal if requested.
Redundancy
Redundancy is a form of dismissal from a job. Reasons include:
new technology or a new system has made thejob unnecessary
the job no longer exists
the need to cut costs means staff numbers must be reduced
the business is closing down or moving
In a redundancy situation, the following things should happen:
The employer should select employees fairly
The employee should be consulted about the redundancy
The employee should get any redundancy pay due, and be given the correct amount of notice
Your employer should consider any alternatives to redundancy
Methods of selection
If a method for deciding redundancies has been agreed with a trade union, the employer should follow it. It is up to the employer which reasons they use, as long as they can show that they are fair. The most commonly used reasons are:
last in, first out (where the employees with the shortest length of service are selected first)
asking for volunteers (self-selection)
disciplinary records
staff appraisal markings, skills, qualifications and experience
Sometimes an employer may use a combination of criteria, perhaps using some kind of points system to get an overall score.
The employer may select people by asking them to reapply for their own jobs.
Unfair reasons for redundancy include:
membership or non-membership of a trade union
exercising statutory rights (for example, asking for a written statement of employment particulars)
whistleblowing (that is, making disclosures about the employer's wrongdoing)
taking part in lawful industrial action lasting 12 weeks or less
taking action on health and safety grounds
doing jury service
trusteeship of a company pension scheme
There are two ways in which the employer consult about redundancy:
collectively (that is, consulting the whole group that is being made redundant)
individually (that is, speaking to each person directly)
Collective consultation
If the employer plans to make 20 or more employees redundant within a 90-day period, the employee's trade union (or elected employee representative) should be consulted before anyone's given notice.
The consultation should cover ways to avoid a redundancy situation, and how to keep the number of dismissals to a minimum and limit the effects on those dismissed (eg by offering retraining). It should take place at least 30 days before the redundancies are due to begin or 90 days if more than 100 employees are affected.
If this doesn't happen, the Employment Tribunal can award up to 90 days' pay in compensation to each employee.
The employer should always consult individually. This will normally involve speaking to the employee about the reasons for selection and looking at any alternatives to redundancy.
Redundancy Pay
The employee has the right to a redundancy payment if you're s/he has worked continuously for the employer for at least two years. Statutory redundancy pay isn't taxable.
Redundancy pay is also due when a fixed-term contract of two years or more expires and is not renewed because of redundancy.
The first £30,000 of any termination payment (including redundancy pay, notice pay etc) is tax-free.
Statutory redundancy pay
The total amount the employee should be paid for redundancy will be based on the employee's weekly pay, up to a legal limit (current maximum £310), calculated with half a week’s pay for each complete year of continuous service below the age of 22, a full week’s pay for each complete year of continuous service between the ages of 22 and 40, and a week and a half’s pay for each complete year of continuous service above the age of 41.
Minimum Wage
With a few exceptions, all workers in the UK aged 16 or over are legally entitled to be paid a minimum amount per hour. This is regardless of the kind of work they do or the size and type of company. The rate is reviewed every year, and any increases take place in October. The rates for adults (22 and over) from 1 October 2007 is £5.52.
Sick Pay Rights
Employers may offer a sick pay scheme that is more generous than the legal minimum (SSP) but cannot offer sick pay below the legal minimum.
The current rate SSP rate is £72.55 per week but the SSP doesn't start until the fourth day that an employee is off sick.
Employment Contract
A contract of employment is an agreement between an employer and an employee. Both sides' rights and duties, are called the ‘terms' of the contract. The contract doesn’t have to be in writing, but the employee MUST be provided with a written statement of the main terms within two months of starting work covering pay, hours of work, holiday entitlement, sick pay arrangements, notice periods, and information about disciplinary and grievance procedures.
Changes to the Employment Contract
Either the employer or the employee can seek a change to the terms of the contract, but if it concerns
pay, hours of work, holiday entitlement, sick pay arrangements, notice periods, and and information about disciplinary and grievance procedures, then the employer MUST provide the employee a written statement of the changes within 1 month.
If either side is opposed to the change it is crucial that seek advice immediately, since a failure to protest the change may amount to what is known as waiving the breach, which means that both sides are treated as accepting the change, even if they did not want to.
Fixed Term Contracts
Employers can employ employees for a fixed duration but this does not mean that the employer is free from any responsibility when the contract is at end. Not renewing a fixed-term contract is treated as a dismissal, so if the contract is not renewed fixed term employees also have full redundancy rights (if continuously employed for two years or more, unless they signed a clause waiving their right to a redundancy payment before 1 October 2002) and statutory protection against unfair dismissal (once they have one year's service).
Also, the general rule is that, except where there's good reason, employers mustn't treat fixed-term employees less favourably than permanent employees doing the same, or largely the same, job. This means that fixed-term employees have the right (except where there's good reason) to the same pay and conditions, the same or equivalent benefits package, access to an occupational (company) pension scheme (except perhaps where the fixed-term contract is for less than two years), and the right to be informed about permanent employment opportunities in the organisation.
Part-time Workers
According to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations, part-timers must be treated at least as well as equivalent full-time workers, unless the reason why not can be objectively justified. An 'equivalent' full-time worker is one doing a similar job on the same type of contract. Part-time workers must get at least the same hourly pay rate as a full-timer doing a similar job. Employers should not discriminate between full-time and part-time workers over access to pension schemes. Part-time workers mustn't be excluded from training and career development opportunities. All workers have the right to a minimum amount of annual holiday. The statutory minimum entitlement will be 4.8 weeks holiday a year, based on the employee's normal working week.
Part-time employees have the right to a written statement explaining why they are being treated less favourably. If an employee writes to his/her employer asking for this statement the employer must respond within 28 days.
Holiday Entitlement
Full Time employees are entitled to a minimum of 4.8 weeks paid holiday. This entitlement will increase again to 5.6 weeks from 1 April 2009.
When an employees finishes a job, s/he is entitled to pay for any holiday that has not been taken.
Employers are entitled to include bank and public holidays in the minimum entitlement. Employees do not have a statutory right to paid leave on bank and public holidays. There is no automatic right to an enhanced pay rate for working on bank and public holidays.
Breaks
The law sets requirements on rest breaks in two ways: there are minimum rest breaks set down in the Working Time Regulations and under health and safety legislation.
Adult workers normally have the right to a 20 minute rest break if expected to work for more than six hours at a stretch. A "young worker" is entitled to a 30 minute rest break if they are expected to work for more that four and a half hours at a stretch.
The requirements are the break must be in one block, it can't be taken off one end of the working day - it must be somewhere in the middle, and that the employee is allowed to spend it away from work premises.
Adult workers usually have the right to a break of at least 11 hours between working days. A young worker has a right to a break of at least 12 hours between working days.
Adult workers usually have the right to 24 hours clear of work each week or 48 hours clear each fortnight.
Young workers must have at least 48 hours clear of work every week. If the nature of the job makes it unavoidable, e.g. if the work is in split shifts, then the 48 hours could be reduced to 36 hours so long as time off is given later in compensation.
Maternity Leave
Statutory maternity leave is for 52 weeks, with Statutory Maternity Pay for up to 39 weeks of the leave. Employees have the right to 26 weeks of 'Ordinary Maternity Leave' and 26 weeks 'Additional Maternity Leave' - making one year in total. Provided certain notification requirements are met, there is no minimum period of employment, or minimum amount of hours that must have been worked.
Paternity Leave
An employee can take statutory paternity leave of up to 2 weeks at one time, within 56 days of the baby's birth, if an employee, with a contract of employment (most agency workers and sub contractors don't have the right to paid paternity leave) and the biological father of the child, or the mother's husband or partner (including a mother's partner in a same-sex relationship) and employed by the employer for at least 26 weeks by the end of the 15th week before the beginning of the week when the baby's due and will be fully involved in the child's upbringing and the employee is taking the time off to support the mother or care for the baby.
This leave will entitle an employee to earn at least the lower earnings limit (LEL) for National Insurance contributions during the paternity leave.
Parental Leave
If an employee has been employed for over a year, s/he can take up to 13 weeks unpaid off work (in total, not per year) for each child, up to their fifth birthday (or up to five years after the placement date of an adopted child) and 18 weeks unpaid for each disabled child, up to the child's 18th birthday.
Employer's Health and Safety Duties
Employer have a 'duty of care' to ensure, as far as possible, employee's health, safety and welfare at work. Employers must perform a risk assessment to spot possible health and safety hazards and have to appoint a 'competent person' with health and safety responsibilities.
Businesses employing five or more people must also keep an official record of what the assessment finds, a formal health and safety policy, including informing employees of the arrangements to protect their health and safety.
All employers, whatever the size of the business, must make the workplace safe, prevent risks to health, ensure that plant and machinery is safe to use, and that safe working practices are set up and followed, make sure that all materials are handled, stored and used safely, provide adequate first aid facilities, warn employees about any potential hazards, chemicals and other substances, and give employees information, instructions, training and supervision as needed, set up emergency plans, make sure that ventilation, temperature, lighting, and toilet, washing and rest facilities all meet health, safety and welfare requirements, check that the right work equipment is provided and is properly used and regularly maintained, prevent or control exposure to substances that may damage your health, take precautions against the risks caused by flammable or explosive hazards, electrical equipment, noise and radiation, avoid potentially dangerous work involving manual handling (and if it can't be avoided, take precautions to reduce the risk of injury), provide health supervision as needed, provide protective clothing or equipment free of charge (if risks can't be removed or adequately controlled by any other means), ensure that the right warning signs are provided and looked after, report certain accidents, injuries, diseases and dangerous occurrences to either the Health and Safety Executive (HSE) or the local authority.
So that the work premises provide a safe and healthy place to work, employers should make sure that workplaces are properly ventilated, with clean and fresh air, keep temperatures at a comfortable level (a minimum of 13 degrees C where the work involves physical activity; 16 degrees C for 'sedentary' workplaces (eg offices) - there's no maximum limit), light premises so that employees can work and move about safely, keep the workplace and equipment clean, ensure that workrooms are big enough to allow easy movement (at least 11 cubic metres per person), provide workstations to suit the employees and the work, keep the workplace and equipment in good working order, make floors, walkways, stairs, roadways etc safe to use, protect people from falling from height or into dangerous substances, store things so they're unlikely to fall and cause injuries, fit openable windows, doors and gates with safety devices if needed, provide suitable washing facilities and clean drinking water, if necessary, provide somewhere for employees to get changed and to store their own clothes, set aside areas for rest breaks and to eat meals, including suitable facilities for pregnant women and nursing mothers, let employees take appropriate rest breaks and their correct holiday entitlement, make sure that employees who work alone, or off-site, can do so safely and healthily.