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.

1. Introduction to
Employment Law
October 2019

2. About today’s session
• Back to basics
• Introduction/refresher

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. Jargon-busting
TOIL
4

5. Jargon-busting
PILON
5

6. Jargon-busting
Zero
hours
contract
6

7. Jargon-busting
LIFO
(and FIFO)
7

8. Jargon-busting
TUPE
8

9. Jargon-busting
COT3
9

10. Jargon-busting
SOSR
10

11. Jargon-busting
ET
(and ET1 and ET3)
11

12. Jargon-busting
SSP
12

13. Jargon-busting
EAT
13

14. Jargon-busting
ACAS
14

15. Where do UK employment
rights come from?
1. Statute and regulations
2. Contracts of employment
3. Case law

16. 1. Statute and regulations
• Acts of Parliament
• Statutory Instruments
• EU law

17. Which UK employment laws
do you think come from the
EU?
• Paid holiday?
• Minimum Wage?
• Sick Pay?
• TUPE?

18. Which UK employment laws
do you think come from the
EU?
• Statutory minimum notice?
• Redundancy rights?
• Unfair Dismissal?
• Discrimination?

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. 2. Contracts of Employment
• Terms required by law (including
section 1 statement)
• Terms agreed between the parties
• Unwritten or implied terms

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. 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. 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. 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. 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. Section 1 statements
Forthcoming changes from 6 April 2020
For more information, please see
https://www.pureemploymentlaw.co.uk/some
-particular-changes/

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. Unwritten or implied terms
• Equal pay clause
• Health and safety
• “Duty of mutual trust and confidence”

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. Case law - examples
• British Home Stores v Burchell (1978)
• Bear Scotland v Fulton (2015)

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. 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. 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. What does it mean to be self-
employed or freelance?
“working for oneself rather than for an
employer.”

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. 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. 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. 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. What are the main worker
rights in the UK?
• Protection against unlawful discrimination
• National Minimum Wage
• Working Time rights

40. Disciplinary & Grievance
Issues and Unfair Dismissal

41. Disciplinary Issues
• Misconduct
• For example:
• theft
• fighting
• refusing to obey instructions

42. Disciplinary Process
• Disciplinary Procedure
• ACAS Code
• Fairness

43. Disciplinary Process
• Investigate
• Disciplinary Hearing
• Appeal

44. Disciplinary Process
• Investigation:
• Witnesses
• Documents
• CCTV
• Any case to answer?

45. Disciplinary Process
• Invitation to Disciplinary Hearing:
• Accusations
• Supporting evidence
• Right to be accompanied?
• Possible outcome

46. Disciplinary Process
• Disciplinary Hearing:
• Who should hold it?
• Opportunity to explain
• Decision

47. Disciplinary Process
• Right of Appeal:
• Who should hold it?
• Opportunity to review
• Decision

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. • Capability
• Conduct
• Redundancy
• Breach of a statutory enactment
• “Some other substantial reason”
5 potentially fair reasons

50. Unfair Dismissal
• Early conciliation
• Time limits
• ET1
• ET3

51. Unfair Dismissal
• Witnesses
• Documents
• Time frame

52. Unfair Dismissal
• The Hearing
• Burden of proof
• The decision

53. Grievances
• Unhappy employees
• Investigate
• Hearing
• Right to be accompanied
• Appeal

54. Key principles of
discrimination law

55. Protected characteristics
• Race
• Gender
• Disability
• Age
• Marital/civil partnership status
• Sexual orientation
• Religious or philosophical belief
• Gender reassignment
• Pregnancy

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. 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. 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. 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. Harassment Example
• Harassment
Physically assisting wheelchair user into
premises against her wishes

61. Victimisation Example
•Victimisation
Gay employee raises grievance about
employer’s derogatory remarks about his
sexuality, consequently does not get
promised pay rise

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. Reasonable adjustments
• Need to have a disability
• Remove/minimise disadvantages
• Policies and practices that do not
disadvantage the disabled

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. Potential adjustments
• Physical features
• Hours
• Redeployment

66. Who is protected?
• Employees and job applicants
• Applicants
• Former employees
• Contract workers and agency workers
• Partners

67. Who is liable?
• Employer’s liability for acts of employees
• Personal liability of employees
• Reasonable steps defence

68. Lawful Discrimination
Exceptions
• Genuine occupational requirements
• Positive action

69. Potential discrimination
related areas
• Advertising
• Promotions
• References

70. Any Questions?

71. Don’t forget to subscribe to
our free, plain English
ebulletins:
www.pureemploymentlaw.co.uk