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Introduction to Employment Law for Sussex CIPD - 10 October 2019

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Our presentation to Sussex CIPD covering the main concepts of UK employment law, including contracts of employment, employment status, disciplinary and grievance issues, unfair dismissal and discrimination.

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Introduction to Employment Law for Sussex CIPD - 10 October 2019

  1. 1. Introduction to Employment Law October 2019
  2. 2. About today’s session • Back to basics • Introduction/refresher
  3. 3. Today’s topics • Jargon busting! • Where does employment law come from? • Contracts of employment • What is an employee? • Disciplinary and grievance issues • Key principles of discrimination law
  4. 4. Jargon-busting TOIL 4
  5. 5. Jargon-busting PILON 5
  6. 6. Jargon-busting Zero hours contract 6
  7. 7. Jargon-busting LIFO (and FIFO) 7
  8. 8. Jargon-busting TUPE 8
  9. 9. Jargon-busting COT3 9
  10. 10. Jargon-busting SOSR 10
  11. 11. Jargon-busting ET (and ET1 and ET3) 11
  12. 12. Jargon-busting SSP 12
  13. 13. Jargon-busting EAT 13
  14. 14. Jargon-busting ACAS 14
  15. 15. Where do UK employment rights come from? 1. Statute and regulations 2. Contracts of employment 3. Case law
  16. 16. 1. Statute and regulations • Acts of Parliament • Statutory Instruments • EU law
  17. 17. Which UK employment laws do you think come from the EU? • Paid holiday? • Minimum Wage? • Sick Pay? • TUPE?
  18. 18. Which UK employment laws do you think come from the EU? • Statutory minimum notice? • Redundancy rights? • Unfair Dismissal? • Discrimination?
  19. 19. What might Brexit mean for employment law? • Trade agreements may require a certain level of employment rights • Standing of European Court decisions • ECHR
  20. 20. 2. Contracts of Employment • Terms required by law (including section 1 statement) • Terms agreed between the parties • Unwritten or implied terms
  21. 21. Section 1 statements (1) • Names of the parties • Job title/description of work • Place of work • Start date and continuous service date • Pay amount and interval • Hours of work • Holiday entitlement These have to be included in the statement
  22. 22. Section 1 statements (2) • Terms about working abroad for more than one month • Terms about the length of temporary or fixed term work • Details of any collective agreements in place These have to be included in the statement
  23. 23. Section 1 statements (3) These can be provided in a separate accessible document: • Terms relating to sickness absence and sick pay • Notice periods for either party • Information about disciplinary and grievance procedures • Terms relating to the pension scheme
  24. 24. When should the section 1 statement be provided? (a) On or before the day employment starts? (b) Within two months of employment starting? (c) After one year’s service?
  25. 25. Section 1 statements Forthcoming changes for new starters from 6 April 2020 • Workers as well as employees • Day 1 right • Additional points to cover e.g. probation • More has to go in the statement
  26. 26. Section 1 statements Forthcoming changes from 6 April 2020 For more information, please see https://www.pureemploymentlaw.co.uk/some -particular-changes/
  27. 27. Other clauses employers may wish to include • Deductions clause • Suspension clause • Right to make reasonable changes • Confidentiality and data protection • Other terms relevant to your workplace
  28. 28. Unwritten or implied terms • Equal pay clause • Health and safety • “Duty of mutual trust and confidence”
  29. 29. 3. Case law • Decided cases determine legal principles • Judicial interpretation of legislation, regulations or contractual terms • The court hierarchy and how cases become binding
  30. 30. Case law - examples • British Home Stores v Burchell (1978) • Bear Scotland v Fulton (2015)
  31. 31. How are UK employment rights enforced? • Sometimes by government bodies (e.g. HMRC, HSE) • Sometimes by collective action • Mostly by enforcement by individuals (grievances, claims to an Employment Tribunal, claims in the civil courts)
  32. 32. What is an employee? “An individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment".
  33. 33. What is a contract of employment? “a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing".
  34. 34. What does it mean to be self- employed or freelance? “working for oneself rather than for an employer.”
  35. 35. What is a worker? An individual who has entered into or works under: • A contract of employment; or • Any other contract whereby the individual undertakes to do or perform personally any work or services for another party to the contract
  36. 36. How is employment status decided? (1) •Tribunals and courts will look at a range of factors •Consider the reality of the situation, not just the documentation •Tax position isn’t always the same
  37. 37. How is employment status decided? (2) •Intention of the parties •Mutuality of obligation •Availability of benefits (holiday, sick pay) •Control •Integration •Personal service and substitution
  38. 38. What are the main employee rights in the UK? • Contractual rights • Protection against unfair dismissal* • Whistleblower protection • TUPE rights • Right to a redundancy payment* • Family-friendly rights
  39. 39. What are the main worker rights in the UK? • Protection against unlawful discrimination • National Minimum Wage • Working Time rights
  40. 40. Disciplinary & Grievance Issues and Unfair Dismissal
  41. 41. Disciplinary Issues • Misconduct • For example: • theft • fighting • refusing to obey instructions
  42. 42. Disciplinary Process • Disciplinary Procedure • ACAS Code • Fairness
  43. 43. Disciplinary Process • Investigate • Disciplinary Hearing • Appeal
  44. 44. Disciplinary Process • Investigation: • Witnesses • Documents • CCTV • Any case to answer?
  45. 45. Disciplinary Process • Invitation to Disciplinary Hearing: • Accusations • Supporting evidence • Right to be accompanied? • Possible outcome
  46. 46. Disciplinary Process • Disciplinary Hearing: • Who should hold it? • Opportunity to explain • Decision
  47. 47. Disciplinary Process • Right of Appeal: • Who should hold it? • Opportunity to review • Decision
  48. 48. • Statutory claim brought in Employment Tribunal • Employees only – not workers or self- employed • Most claims need 103 weeks’ service • Not really about fairness! • What is wrongful dismissal? • What is unfair constructive dismissal? What is unfair dismissal?
  49. 49. • Capability • Conduct • Redundancy • Breach of a statutory enactment • “Some other substantial reason” 5 potentially fair reasons
  50. 50. Unfair Dismissal • Early conciliation • Time limits • ET1 • ET3
  51. 51. Unfair Dismissal • Witnesses • Documents • Time frame
  52. 52. Unfair Dismissal • The Hearing • Burden of proof • The decision
  53. 53. Grievances • Unhappy employees • Investigate • Hearing • Right to be accompanied • Appeal
  54. 54. Key principles of discrimination law
  55. 55. Protected characteristics • Race • Gender • Disability • Age • Marital/civil partnership status • Sexual orientation • Religious or philosophical belief • Gender reassignment • Pregnancy
  56. 56. Four types of discrimination Direct discrimination: Because of a protected characteristic, A treats B less favourably than A treats or would treat others.
  57. 57. Four types of discrimination Indirect discrimination: Acts/decisions/policies which puts (or would put) those with a protected characteristic at a particular disadvantage compared to others.
  58. 58. Four types of discrimination Harassment: A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either: • Violating B's dignity, or • Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
  59. 59. Four types of discrimination Victimisation: Where a person (A) subjects another person (B) to a detriment because either: • B has done a protected act; or • A believes that B has done, or may do, a protected act.
  60. 60. Harassment Example • Harassment Physically assisting wheelchair user into premises against her wishes
  61. 61. Victimisation Example •Victimisation Gay employee raises grievance about employer’s derogatory remarks about his sexuality, consequently does not get promised pay rise
  62. 62. Not Discrimination A job centre told her she couldn’t advertise for 'reliable’ and 'hard-working' applicants because it could be offensive to unreliable people.
  63. 63. Reasonable adjustments • Need to have a disability • Remove/minimise disadvantages • Policies and practices that do not disadvantage the disabled
  64. 64. What is reasonable? • Varies for each case • Practicality of adjustment • Resources / size of employer • Effectiveness in overcoming disadvantage • Impact on the health and safety of others
  65. 65. Potential adjustments • Physical features • Hours • Redeployment
  66. 66. Who is protected? • Employees and job applicants • Applicants • Former employees • Contract workers and agency workers • Partners
  67. 67. Who is liable? • Employer’s liability for acts of employees • Personal liability of employees • Reasonable steps defence
  68. 68. Lawful Discrimination Exceptions • Genuine occupational requirements • Positive action
  69. 69. Potential discrimination related areas • Advertising • Promotions • References
  70. 70. Any Questions?
  71. 71. Don’t forget to subscribe to our free, plain English ebulletins: www.pureemploymentlaw.co.uk

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