Employment Law UK

Employment law in the UK

Employment law UK is a comprehensive framework designed to govern the relationship between employers and employees, trade unions, and employment agencies and businesses. It aims to secure the health, safety, and welfare of persons at work and protect others against risks arising from work activities and equality in the workplace.

Key Legislation Shaping Employment Law UK

Several key pieces of legislation, along with their associated regulations, define the landscape of employment law in the UK:

• Employment Relations Act 1999 (ERA 1999):- This Act amended laws relating to employment, trade unions, and employment agencies and businesses. It introduced provisions concerning collective bargaining, unfair dismissal, part-time work, and established or clarified roles for bodies like the Central Arbitration Committee (CAC) and ACAS.

• Equality Act 2010:- This Act reformed and harmonised equality law, restating most enactments related to discrimination and harassment based on certain personal characteristics. It applies broadly to work, education, premises, and public functions, including Crown employment and service in the armed forces.

• Health and Safety at Work etc. Act 1974 (HSWA 1974):- This Act lays down general duties for employers, employees, and others concerning health, safety, and welfare at work. It also covers control of dangerous substances and emissions.

• National Minimum Wage Act 1998 (NMWA 1998):- This Act makes provision for a national minimum wage, including regulations for its determination, enforcement, and related rights concerning unfair dismissal and detriment.

• The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE Regulations 2006):- These regulations implement EU Directives on business transfers, protecting employees' rights when an undertaking, business, or part of it is transferred.

• The Maternity and Parental Leave etc. Regulations 1999:- These regulations, alongside provisions in the Employment Rights Act 1996 (ERA 1996) as amended by the ERA 1999, confer new rights related to maternity and parental leave.

Core Areas of Employment Law UK

1. Rights of Individuals

Individuals in employment are afforded several specific rights and protections:

• Right to be Accompanied:- A worker has the right to present a complaint to an employment tribunal if their employer has failed, or threatened to fail, to comply with the right to be accompanied as outlined in section 10(2) or (4) of the ERA 1999.

• Protection from Detriment and Unfair Dismissal:-

• The ERA 1999 establishes protections against detriment and dismissal related to collective agreements, particularly when a worker refuses to enter a contract with terms different from an applicable collective agreement.

• The ERA 1999 also deems a worker unfairly dismissed if the reason is their exercise or attempt to exercise the right to be accompanied, or their act of accompanying another worker. Sections 108 and 109 of the ERA 1996 (qualifying period and upper age limit for unfair dismissal) do not apply in such cases.

• Unfair dismissal of striking workers is addressed in Schedule 5 of the ERA 1999, which inserted Section 238A into the Trade Union and Labour Relations (Consolidation) Act 1992.

• The National Minimum Wage Act 1998 also provides a right not to be subjected to any detriment by an employer for reasons related to the minimum wage. Dismissal for a reason related to the national minimum wage is regarded as unfair dismissal.

• The Equality Act 2010 prohibits employers from subjecting applicants or employees to detriment based on protected characteristics. It also prohibits victimisation of contract workers. A worker can present a complaint to an employment tribunal if subjected to a detriment in contravention of these provisions.

• Part-time Work Discrimination:- The Secretary of State is mandated to make regulations to ensure that persons in part-time employment are treated no less favourably than full-time employees, for specified purposes and to specified extents. These regulations can confer jurisdiction on employment tribunals and the Employment Appeal Tribunal and create criminal offences for specified acts or omissions by employers or organisations. They are intended to implement Council Directive 97/81/EC on the framework agreement on part-time work.

• National Minimum Wage (NMW):- Workers are entitled to be paid at least the national minimum wage. The Secretary of State can make regulations regarding the hourly rate of remuneration, exclusions, and modifications for certain classes of persons. Employers have a duty to keep records related to NMW, and workers have a right to access these records. Information obtained by revenue officials can be supplied to the Secretary of State for NMW purposes.

• Family and Domestic Reasons Leave:- The ERA 1999 introduced or amended provisions related to maternity and parental leave, which are detailed in the Maternity and Parental Leave etc. Regulations 1999.

• Maternity Leave:- An employee may be absent for ordinary or additional maternity leave, subject to prescribed conditions. These periods generally do not include terms and conditions about remuneration, which the Secretary of State may specify. There is also a provision for compulsory maternity leave.

• Parental Leave:- Employees are entitled to 18 weeks of leave per child. This leave can generally be taken before the child's fifth birthday, with exceptions for children entitled to a disability living allowance where it can be taken before their eighteenth birthday. An employee can complain to an employment tribunal if their employer unreasonably postpones parental leave or prevents them from taking it. Certain contractual rights and obligations continue during maternity and parental leave, and employees have a right to return to the same or an appropriate alternative job.

• Neonatal Leave and Pay:- Introduced as a new policy, parents are eligible for one week of neonatal care leave and pay for each week their baby is in neonatal care, up to a maximum of 12 weeks, provided the baby has a continuous stay of seven days or more. All employees are eligible for Neonatal Leave from day one of their employment, while statutory pay requires 26 weeks of continuous service with the employer by the 15th week before the baby is due. Employers can typically recover a significant portion of statutory payments from HMRC, with small businesses often recovering more than 100%.

• Flexible Working:- Employees have the right to request flexible working patterns different from their current one under section 80F of the Employment Rights Act 1996.

2. Trade Unions and Related Bodies

• Collective Bargaining and Recognition:- The ERA 1999 amended the Trade Union and Labour Relations (Consolidation) Act 1992 concerning collective bargaining recognition. Employers have duties to cooperate with unions during ballots, providing access to workers to inform them of the ballot's object and seek support. Codes of Practice can be issued regarding reasonable access.

• Lists for Discrimination:- Regulations can be made prohibiting the use, sale, or supply of lists containing details of trade union members or participants in trade union activities compiled for discrimination purposes by employers or employment agencies in recruitment or worker treatment. Employment tribunals and the Employment Appeal Tribunal may have jurisdiction over such cases, including powers to grant remedies and awards of compensation.

• Central Arbitration Committee (CAC):- The ERA 1999 details the membership and proceedings of the CAC. Applications to the CAC must be in a specified form and supported by documents.

• Advisory, Conciliation and Arbitration Service (ACAS):- ACAS has a general duty, and its reporting procedures were updated to reflect financial years instead of calendar years. ACAS also has the power to issue Codes of Practice on reasonable access for unions during ballots. Conciliation by ACAS applies to complaints to employment tribunals under the ERA 1999 and TUPE regulations.

• Certification Officer:- The ERA 1999 includes provisions regarding the Certification Officer, including the abolition of Commissioners. The Certification Officer makes enquiries and provides opportunities for parties to be heard in relation to complaints about breaches of union rules or applications concerning amalgamations or transfers of engagements. The Certification Officer also produces an annual report, now based on the financial year.

3. Health and Safety at Work

The Health and Safety at Work etc. Act 1974 establishes fundamental duties and enforcement mechanisms:

• General Duties:-

• Employers have a duty, so far as reasonably practicable, to ensure the health, safety, and welfare at work of all their employees.

• Employers must also protect persons other than their employees against risks to health or safety arising from their work activities.

• Employees have a duty to take reasonable care for their own health and safety and that of others affected by their actions at work, and to cooperate with their employer regarding statutory health and safety provisions.

• Prohibition of Charges:- Employers are prohibited from levying any charge on employees for anything done or provided in pursuance of specific statutory health and safety requirements.

• Health and Safety Executive (HSE):- The HSE assists and encourages persons concerned with health and safety, arranges for research and publication of results, and provides training and information.

• Enforcement Powers:-

• Improvement Notices can be issued by inspectors requiring a person to remedy a contravention of statutory provisions within a specified period.

• Prohibition Notices apply to activities that are being or are likely to be carried on, requiring the cessation or prohibition of certain activities until the risk of serious personal injury is removed.

• Inspectors have powers to investigate, obtain information, and prosecute offences.

• Offences and Penalties:- Various actions constitute offences, such as contravening health and safety regulations, obstructing inspectors, or making false statements. Penalties can include fines and imprisonment.

• Disclosure of Information:- Restrictions apply to the disclosure of information obtained under the Act, with specific exceptions for purposes like facilitating the exercise of powers or duties under statutory provisions, and to certain public authorities.

4. Equality and Discrimination

The Equality Act 2010 provides a unified framework for equality law:

• Protected Characteristics:- The Act identifies the following as protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

• Prohibited Conduct:- The Act prohibits direct discrimination, combined discrimination (dual characteristics), discrimination arising from disability, gender reassignment discrimination related to absence from work, pregnancy and maternity discrimination (work and non-work cases), and indirect discrimination. It also prohibits harassment and victimisation.

• Work-Related Provisions:- The Act applies to a wide range of work contexts:

• Employees and Applicants:- Prohibits discrimination in arrangements for offering employment, terms of employment, not offering employment, or dismissing an employee.

• Contract Workers:- Prohibits principals from discriminating against, harassing, or victimising contract workers.

• Police Officers:- Special provisions apply, treating constables and police cadets as employees of the relevant officer for the purposes of Part 5 of the Act.

• Partners and LLPs:- Prohibits discrimination in offering positions as partners or members of Limited Liability Partnerships (LLPs).

• Barristers and Advocates:- Prohibits discrimination, harassment, and victimisation in relation to pupillage, tenancy, or instructing an advocate, and applies a duty to make reasonable adjustments.

• Office Holders:- Covers personal and public offices, prohibiting discrimination in appointment or treatment.

• Qualifications Bodies:- Prohibits discrimination in conferring, withdrawing, or varying relevant qualifications.

• Employment Service-Providers:- Prohibits discrimination in vocational training, guidance, and services for finding or supplying employment.

• Trade Organisations: Prohibits discrimination related to membership or services.

• Local Authority Members:- Prohibits discrimination or harassment in relation to carrying out official business.

• Pay Transparency:- Regulations may require employers to publish information on gender pay differences. Terms preventing or restricting discussions about pay are unenforceable.

• Reasonable Adjustments:- A duty to make reasonable adjustments applies to various entities in relation to disabled persons across employment, premises, and education.

• Enforcement:-

• Employment Tribunals:- have jurisdiction over complaints related to contraventions of the work part of the Act, including breaches of equality clauses or rules and disputes about non-discrimination rules in occupational pension schemes. They can make declarations and award compensation.

• Time Limits:- Complaints must generally be presented within three months, with provisions for extensions where it was not reasonably practicable to do so earlier.

• Burden of Proof:- Regulations can make provision for the burden of proof in proceedings.

• National Security:- Actions for safeguarding national security do not contravene the Act if they are proportionate for that purpose, and specific provisions for national security employment exist.

• Contracting Out:- Terms in contracts or agreements that purport to exclude or limit the operation of the Act are generally unenforceable or void.

5. Transfer of Undertakings (Protection of Employment) (TUPE)

The TUPE Regulations 2006 protect employees' rights during business transfers:

• Scope:- These regulations apply to a transfer of an undertaking, business, or part thereof, situated in the UK, where an economic entity retains its identity. They also apply to a "service provision change," where activities cease to be carried out by one person and are carried out by another, or where activities are outsourced or brought back in-house.

• Effect on Contracts of Employment:- Generally, a relevant transfer does not terminate the contract of employment of an employee assigned to the transferred entity; instead, the contract takes effect as if it were originally made between the employee and the transferee. Rights, powers, duties, and liabilities under or in connection with the contract transfer to the transferee.

• Variation of Contracts:- Terms of employment may be varied if the reason for the variation is an "economic, technical or organisational reason entailing changes in the workforce". However, variations of terms incorporated from collective agreements generally cannot take effect within one year of the transfer if they are less favourable to the employee.

• Employee Objections:- An employee can object to becoming employed by the transferee, in which case their contract terminates automatically, and they are not treated as dismissed by the transferor.

• Effect on Collective Agreements:- Existing collective agreements in respect of transferred employees have effect as if made with the transferee.

• Dismissals:- If the sole or principal reason for dismissal is the transfer itself, the dismissal is generally treated as unfair dismissal unless it is for an economic, technical, or organisational (ETO) reason entailing changes in the workforce.

• Information and Consultation:- Both the transferor and transferee have duties to inform and consult employee representatives about the transfer, including its reasons, implications for employees, and any proposed measures. This information must be provided long enough before the transfer to allow for consultation. There are specific rules for employers with fewer than 50 employees and when no appropriate representatives exist. Failure to inform or consult can lead to complaints to an employment tribunal and compensation orders.

• Pensions:- TUPE regulations generally do not apply to occupational pension schemes.

• Contracting Out:- Restrictions on contracting out, as per section 203 of the ERA 1996, apply to TUPE regulations, meaning agreements cannot generally exclude or limit the operation of these regulations.

In summary, Employment Law in the UK, through these interconnected and evolving statutes, establishes a robust framework covering fundamental individual rights, the role and regulation of trade unions, strict health and safety standards, comprehensive protections against discrimination, and specific provisions for business transfers.