Laws2026 Employment Law : Equal Assessment Answers

Answer:

Activity 1

• Aims and objectives of employment

Employment law seeks to balance the bargaining power between the employee and employer with respect to the contract of employment. The employers enjoy dominance over the employees as they have the right to set and change the terms of the employment contract. This may lead to the violation of basic rights the employee should be entitled. Thus employment law seeks to protect the employees from exploitation. Employment law also seeks to promote social justice in the society. Employment law as strives to promote European Union directives and international human rights obligations (Acas.org.uk 2017).  The law also ensures fairness among the dealings between the employee and employer.  Enhancing the relationship between the employee and the employer by improving the work environment, safety, health, productivity, and loyalty and employee development is also aimed by employment law. It provides what the employers and the employees must expect from each other from the proper function of the business. What an employee is entitled to receive from the employer and what an employer may ask the employee to do is governed by employment law. Social evils like discrimination are also intended to be abolished by employment law. A set of guidelines are provided by employment law in all aspects of employment so that the employee and the employer may know what is right and what is not (Taylor and Emir 2015).

Sources of employment law

The two major sources in relation to employment law are the provisions of common law and statues enacted by the parliament.  Statues which form the sources of employment law are the Equality Act 2010, the employment rights act 1996, the work time regulation and the health and safety at workplace act. Common law precedents are also used as a source of employment law for example the case of Wiluszynski v London Borough of Tower Hamlets [1989] ICR 439 and Dacas v Brook Street Bureau (UK) Ltd [2004] EWCA Civ 217. There are little differences between the employment law of Britain, Scotland and Ireland in areas of Discrimination legislations, tribunal and conciliation process and grievance and disciplinary procedures (Acas.org.uk 2017).

1.2 An employment law claim can be brought by the employees in case their rights have been violated. For example in cases of wrongful dismissal, unfair dismissal, discrimination and victimization claims can be brought by the employees. The claims against an employer who violates his duties are initially brought to the Employment tribunal. The cases in an employment tribunal are judged by three persons, one judge and two lay members representing the organization off the employee and employer (Painter and Holmes 2015). 

An appeal against the ET is made in the Employment Appeal Tribunal (EAT). The proceedings in the tribunal are preceded over by a single employment judge. The EAT is bound by the decisions of the Court of Appeal or the Supreme Court (Selwyn and Emir 2014).

An appeal against the decisions of the EAT is put forward before the Court of appeal and if the parties are still not satisfied than an appeal can be made to the Supreme Court. In case the matter is related to the provisions of European law it can be appealed before the European court of justice (Acas.org.uk 2017).

1.3

Source: (Acas.org.uk 2017).

Activity 2

Discrimination is a social evil which not only makes the wrongdoer liable for legal punishment but also deteriorates the working environment of a workplace. Discrimination comes into the context when a person is given a less favorable treatment than the other because he or she is subjected to a protected characteristic such as age, gender, race, religion, martial and matrimonial status, sexual orientation and disability as provided by The Equality Act 2010. Any kind of discrimination is forbidden by the EA with respect to the work place or the process of selection and recruitment. A claim for discrimination may be brought against an employer, organizations, utility companies, schools, public bodies, health care and transport services.  An act of discrimination can be of three types’ direct discrimination, indirect discrimination and discrimination by association (Acas.org.uk 2017).

Discrimination by association arises when a person is discriminated because of being related to a person having protected characteristic. The association may be in any form a family or a business relationship. For example if a person is being discriminated in the workplace because his son has gone through gender reassignment accounts to discrimination by association (Acas.org.uk 2017).

Section 13 of the EA defines direct discrimination. According to the section if (b) a person treats (c) less favorably than any other individual because C possesses one or more protected characteristics as provided by the EA than B is said to discriminate against C.

Section 19 of the EA defines indirect discrimination. According to the section if a person B makes policies and regulations which would put C into a disadvantage because of its protected characteristics and would subject the persons not having the protected characteristic to detriment than B is indirectly discriminating against C.

The human resource manager and the management both have a very important role to pay towards abolishing discrimination from the workplace. It is the role of the HR manager to that the internal policies of the organization company with the standards as provided by the legislations. Such compliance is necessary to ensure consistency and avoiding any legal risk for the organization (Citizensadvice.org.uk. 2017). 

The HR manager also has the responsibility to make the management know what they should be doing as the HR is closely related to the employees and can understand their needs and grievances better than the management.  

The management on the other hand has the responsibility of understanding the needs and grievances conveyed by the HR and helping the HR to frame policies and regulations to address them (Acas.org.uk 2017).

The management also has the role of providing every person equal opportunity in the process of internal selection and recruitment to ensure equality and good employee relations.  The management must also take the initiative to proving training and development programs for the employees for their progress (Citizensadvice.org.uk. (2017).

In case the compliance with the legislations and the provisions of common law is not observed by the organization then the organization is subjected to legal risks. They may have to incur losses in form of paying compensation to the employees as well as losing out on hard earned goodwill in the market.

The organizations also hamper employee relations which are of utmost essential for the growth of an organization in case they do not comply with the provisions of employment law.

2.2 An employment contract sets out the terms and conditions of employment. The essentials of a valid contract are applicable on employment contract as well in order to determine its validity. An offer is given by the employer which is accepted by the employee. The consideration is the work provided by the employee and the remuneration paid by the employer. There must be an intention to create a legal obligation between the employer and the employee In order to form a valid employment contract. Thus if the elements of offer, acceptance, consideration and intention are satisfied an employment contract is formed (Citizensadvice.org.uk. (2017).

An expressed term in a contract is a terms which has been discussed in writing or orally by the parties. Whereas an implied term in an employment contract is a term which is not expressly provided by is binding on the parties. An implied term is incorporated into the contract by the court if they are necessary and obvious not merely because they are just and equitable. For example it is implied that the employees have to act in the best interest of the employers (Citizensadvice.org.uk. (2017).

Five mandatory expressed terms in an employment contract are:

1. Salary
2. Working hours
3. Date of joining
4. Redundancy
5. Terms of Notice  

Other documents which may be a part of the employment contract terms are

1. Offer letter- it acts as an offer which is provided by the employer to the employee containing the terms and conditions of employment.
2. Staff handbook- staff handbooks provides regulations which must be complied by the employees during the course of employment.
3. Verbal promises- any addition verbal promise made by the employer gets incorporated into the contract
4. Job advertisements – these may account to invitation for a job offer and if complete the job offer itself (org.uk. 2017).

Activity 3

3.1 In order to ensure the proper functioning of business organizations the employers may need to change the terms of the employment contract. The terms of the contract may have to be changed because of a period of recession or for the purpose of expanding the organization or for relocating the business or the headquarters of the organization.

The best way of altering the terms of an employment contract is the incorporation of a flexibility clause. The purpose of the clause is to allow the employer of make changes to the contract terms as changes in a contract cannot be made without the consent of both parties. By a flexibility clause the employer already gives his consent to future changes. However the changes which are made through the clause has to be reasonable.

Two alternatives of changing contact terms without a flexibility clause are

1. Agreement- agreement between employee and employer to changes
2. Dismissal and reappointment- dismissing and providing the employees a new contract of employment

If the contractual terms are changes though the process of agreement is has no legal consequences for the employer and are regarded as valid. In case the change is forced or dismissal and reappointment procedure is followed the employees may claim unfair dismissal and breach of contract. Such actions may also degrade the working environment and employee relations (Hse.gov.uk 2017). 

3.2 Redundancy is the situation when the employees are dismissed from their jobs because of economic reasons. According to the Employment rights Act 1996 Section 139 two situations lead to redundancy firstly the employer intends to cease the business activities for the purpose and the place at which the employee was hired and secondly the requirement of the employer to do a specific work or do the work in a specific place no longer exists. The law of redundancy aims to provide compensation to thee employees who are being dismissed (Equalityhumanrights.com. 2017).

According to the size of the business a formal procedure for redundancy comprises of

1. Consultation- Section 188 of the (Consolidation) Act 1992provides that the employers have to consult the employees and the trade unions if the redundancy is of more than twenty employees over a period of 90 days. Consultation should initiate 30-45 days before the first dismissal takes place depending upon the number of dismissals to be made.
2. Selection criteria- there must be no discrimination in relation to the protected characteristics when dismissing employees. Employees may be selected on the basis of skills discipline and aptitude for work.
3. Redundancy notice- a proper redundancy notice is to be provided to the employees prior to dismissal
4. Redundancy payments- the employees are entitled to received redundancy payments in form of compensation upon being dismissed

If the above procedure is not followed the employees can bring a claim of unfair dismissal against the employer in a tribunal (Equalityhumanrights.com. (2017).

3.3 Transfer of Undertakings (Protection of Employment) Regulations 2006 which is also known as TUPE is the implementation of European Union Business Transfers Directive by the UK. It is very important for the HR managers to obtain advice in this field as it is a very complex area of employment law (Honeyball 2014). 

The legislation aims to protect employment rights during a transfer of business and to ensure that no dismissals of employees take place, the contract terms are not worsened and the employer who are effected are consulted and informed.

The steps of a successful TUPE Transfer are (Gov.uk 2017)

The outgoing employer has to

1. Inform about the transfer
2. Consult about the transfer and provide ELI to new employer
3. Must consult the transfer with remaining staff
4. Must discuss redundancies

The incoming employer has to

1. Inform trade union and employees
2. Consult about any measure and the transfer and request ELI
3. Manage and settle the employees
4. Inform about redundancy and review procedure effectiveness.

Activity 4

The employees have to spend most of the time off the day at their work place in order to earn for themselves and their families. A proper work life balance is therefore needed for them to ensure personal development. Thus the law seeks to prevent the employers from exploiting thee employees and provide regulations with respect to minimum pay, leaves and maximum working time. The employees have to be provided with appropriate payments for their services and are entitled to periodic leaves. The employees cannot make them work for more than 48 hours a week so that they can maintain a proper work life balance (Gov.uk 2017).

4.2 The Equality Act 2010 prevents an employer to provide less remuneration to women as compared to men in relation to the same work, similar work or work having equal value done by both. The Equal Pay Act 1970 also provides provisions in relation to equal pay for men and women in the UK.  An employer who has employed 250 or more employees has to mandatorily publish yearly pay gap report with respect to men and women employees. The EA in this relation provides a wider definition about who can be regarded as an employee. The provisions for providing a gender pat report is different from equal pay audit. Six calculations have to be carried out and the results of the calculations have to be published in twelve months (Acas.org.uk 2017).

In my organization equal pay obligations are compiled through the following processes

1. policies and procedures in compliance with legislations
2. payment reviews between genders
3. establishing a performance and pay relationship
4. Ensuring constant review of payment policies.

4.3 Employees have been provided a few rights by law to enjoy a good work life balance. For example

1. Employment Rights Act 1996, sections 80F to 80I- employees can request the employers to alter the terms of the employment contract in relation to work time, and place. The employers have the duty to deal with such application in a reasonable manner and must notify his decisions during a reasonable period. Applications can only be refused under section 80 G for grounds such as additional cost detrimental effect on quality and productivity.
2. Children and Families Act 2014- the act has been enacted with the aim of providing support to parents with respect to their children. The legislation provides facilities which the employees can avail in order to maintain a healthy work life balance and achieve well-being.

My organization has incorporated rights of the employees in the employment contract. The organization does not have to bear a significant financial detriment in relation to the rights. My organization allows the employees to work from home when they are not able to come to office. My organization also provides advances during financial needs to confirmed employees.  The organizations provides these rights whenever applied for liberally as a part of the culture. The productivity of the organization has enhanced as the employee relations have become better (Acas.org.uk 2017).

Activity 5

In the given circumstances the employee can has to wait for the management to address his formal complaint. It is the duty of the management to ensure that the grievances of the employee are addressed. In case the employers do not solve the problem or the employee is not satisfied he can make a claim from harassment against the employer in an employment tribunal (Acas.org.uk 2017). 

5.1 Bullying involves the intimidating, insulting or malicious behavior, a misuse or abuse of authority which denigrates, humiliate or injures a Peron physically or emotionally.  Bullying has not be provided any definition thought the EA. This does not mean that people who are subjected to bullying are not provided any protection. A duty of care is owed by the employers towards the employee and if injury is cased than the duty is breached accounting to negligence.

Harassment on the other hand is similar to bullying. However there is a small difference between bullying and harassment. Whereas bullying may take place in relation to any person harassment is in relation to the person having protected characteristics according to the EA (Gov.uk 2017). 

Bullying with an organization doe not only account to a breach of duty but also puts significant stress on the work environment of the organization. It hampers the wellbeing of the employees and may subjected organization to pay compensation. It hampers employee relationship causing decline in productivity and employee satisfaction.

With respect to workplace bullying and harassment the employers should review the workplace policy and include provisions such as commitment statement from management, examples of unacceptable conduct, punishment or such conduct and laying a confidential process for complains (Citizensadvice.org.uk 2017). 

The organization should also address any complaint with utmost importance and notify the aggrieved employee that strict actions would be taken against the offender.

5.2 The terms of the employment contract are mostly expressed. However some terms need not be expressed in order to exist because their existence is too obvious and necessary. Few of duh terms are the implied duties to take care of the employees, treat them with fairness and respect and to ensure their wellbeing. On the other hand employees have to take maintain the trust and confidence of the employer in them.

In case such terms f the contract are breached the best way for the employees and employers are to follow the grievance procedure as provided by the organization. In case the procedure does not seem to be adequate than they can opt for mediation, conciliation or litigation solve the dispute (Acas.org.uk 2017). 

If the rights of the employee are breached they can repudiated the contract of employment and further claim constructive dismissal.  A constructive dismissal occurs when an employee is forced to resign on his own because his rights within the organization has been violated by the employer.

5.3 Freedom of association provide for

Freedom of association means that any person cannot be forced to join or not to join an association such as a trade union against his will. Persons have full authority to decide whether they want to be a part of the association or not. The law of freedom of association has been incorporated through Article 11 of the Human Rights Act 1998 to ensure its protection.

Article 11 of the Human rights Act provides the right to freedom of assembly and association. According to the article any Peron has the liberty and freedom to become a part of any trade union or leave a union according to their will. Persons are also provided the right to create a trade union under this article. In the provided scenario the employee has the right to reject the joining of any trade union as he is according to his will. In case the rights of the employee re not respected by the organization it would account to a breach of the Act. The organization can implement strict anti-bullying policies to protect the employees (CIPD 2017). 

Activity 6

In this case the organization has to take up the issue to the employee to discuss about it in the first place. The organization can opt for the methods of conciliation and mediation to address the issue. As the employee is long standing the organization may provide him a warning. The organization has to do proper investigation before alleging misconduct (Acas.org.uk 2017).

6.1 The five grounds for a fair dismissal are

1. Capability
2. Misconduct
3. Competence
4. Qualification
5. Redundancy

In this case the most relevant cause for dismissal would be Misconduct.

Capability means the persistence absence of the employee due to injury and illness in both long and short terms. These actions of the employee make him liable to be dismissed fairly by the employer. Whereas, in case of misconduct an employee is dismissed for an act which is against the law or the organization’s policies. Misconduct can be of two types 1. Gross misconduct and 2 normal misconduct. In case of a gross misconduct the employer does not have to provide any notice or pay with respect to the dismissal. Examples of such behavior are stealing, drunkenness, assault, serious breach of polices and bullying. Ordinary misconduct is a minor incidents which warrant to dismissal if taken into account together. The employer has to provide notice for such dismissal. Thus capability arises due to absenteeism and misconduct arises due to actions and behaviors. The organization does not follow the same process in both capability and dismissal. In case of capability dismissal should be the last resort but in case of misconduct the organization can dismiss the employee instantly (Acas.org.uk 2017).  

 The best practices to address capabilities are

1. Performance appraisals: this process can motivate the employees and make them provide extra effort into the organization. It will also let them know what they have provided to the organization. The process also ensures that persons not performing well are shown their defects.
2. Training and development: training and development are one of the best methods to address the needs of the employees. They not only feel motivated but also sense the approach of the organization towards their development.
3. The employees must ensure that the actions leading to a dismissal of an employee must be the last resort an employer should opt for. Before seeking to dismiss the employee proper investigation and attempts to rectify the error has to be ensured.

6.2 An employee cannot be dismissed at the discretion of the employer. The employer is liable to follow certain steps which would ensure a fair dismissal (Millington 2015). 

1. In this case the initial step which the employers need to take is to establish the facts of the case. It is mandatory for the employers to carry out investigation into any matter which may lead to the dismissal of the employee. In case of misconduct the disciplinary hearing and investigation has to be carried out by different people.
2. The employee has to be informed about the problem. In case of a disciplinary case the notice has to be provided in writing. The time and venue of the meeting has to be notified by to the employee along with the right to be accompanied.
3. A meeting has to be held with the employee where the problem would be discussed. The meeting should be without any unreasonable delay and providing reasonable time to the employee to prepare for the case. Advance notice should be provided if witnesses are to be called in a meeting (com 2017).
4. Right to be accompanied: the employees have the right to be accompanied in case the result of the meeting could be a formal notice of warning, some other disciplinary action, and the confirmation of such warning or action. The companion may be a fellow worker, a legal adviser or any family or friend chosen by the employee. The worker must make a reasonable request to exercise his right to be accompanied.  
5. The application must be decided appropriately and an opportunity to be provided to the employee for an appeal.

References:

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The Employment Rights Act 1996

The Equality Act 2010

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