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Overview of UK Employment Law

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1 Overview of UK Employment Law
Alexandra Davidson Keystone Law July 2014 There are 5 volume textbooks about UK employment law so this session will obviously be just an overview to highlight the most important areas. I’m going to take you through the lifetime of an employment relationship – starting it, categorising it, regulating it and terminating it.

2 UK Employment Rights Derived from two main sources Contractual rights
Written or oral Enforced in civil courts and, to a limited extent, in employment tribunals Statutory rights Employment Rights Act 1996 Ordinary Unfair dismissal Automatic Unfair dismissal Deduction from wages Equality Act 2010 National Minimum Wage Includes enactments of EU-derived laws TUPE Working Time Regulations Enforced in employment tribunals Contract – doesn’t have to be in writing as long as there is a mutual obligation between the parties. Contract will cover issues such as remuneration and benefits, duties and obligations, post-termination restrictions. No Civil Code as in other EU countries Contract is governed by common law and is essentially the same as any other contract law (other than no specific performance) Handbook – can be contractual but generally isn’t. Deals with house rules and policies Offer letter – can be the contract if nothing else put in its place

3 Starting the relationship
Pre-employment checks Discrimination on grounds of protected characteristics Immigration status Health questionnaires References Obligations owed to former employer The anti-discrimination regime applies to recruitment – will look at this later Strict controls over status of employee with heavy penalties on employers who do not check. EU citizens (except Croatia), Swiss and those with indefinite leave to remain in the UK have the right to work in the UK. Others need work permit or other authorisation. Pre employment health questionnaires are not permissible unless relating to the intrinsic nature of the job to determine if the candidate would be able to comply. Need to check employee is free to work for you otherwise risk of claim from former employer for ‘inducing breach of contract’

4 Defining the relationship
Types of contractual relationship Employees Workers Self-employed Types of relationship will be dealt with by Oliver in the second session

5 Categorising the relationship
Types of contract Indefinite term Terminable on notice period Fixed term No need for notice Fixed Term Workers Regulations Expiry of fixed term is a dismissal Part time Part Time Employees Regulations Zero hours Agency workers Agency Worker Regulations Swedish derogation Most contracts are indefinite term No upside to fixed term but potential downside Part time workers cannot be denied access to benefits on that ground – part time Judges litigation is an example Zero hours is a current politically controversial topic although it gives a lot of flexibility but it is perceived as one-sided Agency workers Regs new (EU derived) giving agency workers right to claim equivalent benefits to employees after 12 weeks. Ways of getting round this include Swedish derogation where the workers are effectively given employment status and have the right to pay between assignments of a pre-agreed minimum and four weeks pay on termination

6 Regulating the relationship – s1 statement requirements
Holiday 28 days minimum Pension Must provide access Sick pay SSP up to 28 weeks after 3 waiting days Working time Rest breaks, rest days, night working Average working hours Notice periods Statutory minimum overrides the contract Remuneration Job title Parties Disciplinary/grievance appeals Must give employees a s1 statement within 2 months of starting. Must be a single document although some information can be included in a separate document referred to in the s1 statement. If not given, ee can ask ET for declaration of the terms If ee wins ET case on another matter, can be awarded 2 – 4 weeks pay if no s1 statement had been given

7 Regulating the relationship – statutory issues
IP protection Family rights Ante-natal care/ risk assessments Maternity leave and pay Paternity leave and pay Adoption leave and pay Parental leave and pay Time off for dependants Minimum wage Maternity leave is 52 weeks; pay is 39 weeks (6 x higher rate; 33 x lower rate) 2 weeks compulsory leave Now can transfer some to spouse Paternity leave is 2 weeks paid at SMP lower rate Adoption leave mirrors maternity leave without compulsory leave Parental leave is 13 weeks over 5 years, max 4 weeks a year. Unpaid.

8 Regulating the relationship – the contract
Probationary period Right to benefits delayed Short notice period during probationary period Non-compete clauses Flexibility/mobility Other duties commensurate with status Secondment to other group companies Change in work location Pay and bonuses Benefits Oliver will deal with non-compete clauses Wording of these issues important to avoid constructive dismissal claims.

9 Changing the relationship
Varying terms and conditions of employment Is there a right to vary? Seek employee’s consent Terminate contract and offer new contract on revised terms Follow proper procedure ‘sound business reason’ defence to unfair dismissal claim

10 Discrimination Must not discriminate on grounds of a ‘protected characteristic’ Sex Race, nationality Sexual orientation Age Disability Pregnancy/maternity Religion/belief Marriage Gender reassignment Applies to hiring, promotions and treatment in the workplace Harassment Victimisation Conflicting rights Previously contained in a number of separate Acts – now consolidated into Equality Act. Harassment is a stand alone claim. Means conduct unwanted by victim which is on grounds of a protected characteristic Victimisation is where the employee is subjected to a detriment (or penalised) for having complained of discrimination Need to ensure that there is no suggestion of discrimination in the hiring process eg why ask for candidate’s age? Why ask for photo? Conflicting rights – Christian hoteliers don’t want to give rooms to gay couple; Christian Registrar doesn’t want to officiate at gay marriages

11 Ending the relationship
Contractual issues Notice period non-competes Garden leave references Constructive dismissal TUPE Settlement agreements Oliver will deal with non-competes and garden leave Pilons

12 Ending the relationship – statutory issues
Unfair dismissal Valid reasons for dismissal Conduct Capability Redundancy Breach of an enactment Some other substantial reason Acting reasonably in the circumstances Consultation Other requirements Fair sanction Public Interest Disclosures (Whistleblowing) Qualifying protected disclosure leading to detriment Remedies Oliver will deal with some of the udl issues which arise on poor performance Looking at some of the other issues: Conduct – Birchell test Redundancy – genuine, selection, consultation, alternative employment SOSR –

13 Thank you for listening
The End Thank you for listening

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