All you need to know about Employee Rights and Employment Law

Employment Laws are in place to protect both employers and employees in the workplace. The laws govern what employers can expect from employees, what employers can ask employees to do and the employees’ rights at work.

Whilst certain industries are highly regulated, others are not, therefore there are statutory laws in place that protect employee rights regardless of the industry or size of business they work for. Employees are often treated unlawfully because of their lack of knowledge regarding the laws in place to protect them. Similarly, employers often fall foul of the laws unknowingly due to a lack of knowledge and understanding.  

From an employer perspective, ensuring that your organisation is legally compliant can be the difference between success and failure. If an employer fails to be legally compliant it can be incredibly costly and detrimental to the organisation’s reputation.

To add to the complexity of the discipline, laws and regulations are often being amended and new ones being enforced. Lawson-West Solicitors are always up to date with the latest rules and regulations and can help you navigate through the often confusing and complicated guidelines. The following guidance is an overview of just a few of the key areas associated with Employment Law that are particularly relevant to most workplaces and individuals.

At Lawson-West we provide legal support for both employer and employee rights relating to unfair dismissal, discrimination, redundancy, physical and mental well-being, health and safety and workplace diversity, to name just a few. Every case is unique and the circumstances surrounding every enquiry differ.

The nature of employment law requires an objective approach and a close examination of the varying factors contributing to the case.

 

Discrimination

Discrimination refers to the unjust or prejudicial treatment of an individual based on age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex or sexual orientation.  These are an individual’s protected characteristics and the Equality Act 2010 states it is against the law to discriminate against anyone on these grounds.

Discrimination can occur at the very first point of contact with an individual, even prior to face to face communications. Recruitment processes must therefore be concise and robust and each and every application assessed independently and objectively irrespective of any personal information disclosed.

The different types of discrimination

Once employed there are all manner of ways discriminatory activity can occur, intentionally or unintentionally.

Below is an overview of the types of discrimination an individual can be subjected to:

• Direct Discrimination – occurs when an individual is treated less favourably than others;
• Indirect Discrimination – arises when rules and arrangements are put in place that disadvantage an individual;
• Harassment – any unwanted behaviour towards an individual that violates their dignity or creates an intimidating environment for them;
• Victimisation – the unfair treatment of an individual because they have raised concerns about discrimination or because of harassment.

If an individual has a disability, reasonable adjustments must be made in order to meet their needs and requirements. Failure to do so can be classed as discriminatory behaviour and a claim for discrimination could be made against the employer.

Sex discrimination often occurs, the majority of the time inadvertently, but any reports of such behaviour must be taken seriously. It is important that employers familiarise themselves with the type of situations where sex discrimination can arise and ensure their processes and procedures limit these wherever possible.

Employers should encourage employees to discuss any concerns they have regarding discrimination with their manager or appropriate point of contact at the earliest opportunity in order to find a resolution to the issue.

If this is not feasible or does not rectify the issue the employee is entitled to approach an external body for further support. This is known as mediation or alternative dispute resolution.

It is at this point that the individual may be advised to make a claim to the Employment Tribunal.

Equality Act 2010 

Employers should familiarise themselves with the Equality Act 2010 in order to protect themselves and in the best interests of their employees. The Equality Act 2010 legally protects individuals from discrimination in the workplace and the wider society. 

Individuals who are being subjected to discriminatory behaviour must maintain a record of any instances of discrimination that occur and ensure they adhere to the company procedures in order to build a strong case that has gravitas at Tribunal.  

 

Performance Management

Performance management relates to the processes and procedures in place that are used to maintain and improve the performance of a workforce. How this is achieved varies from one organisation to another and will continue to evolve over time.

Effective performance management can help an employer to motivate individuals and teams; ensure everyone is making a contribution towards the success of the organisation; identify training and development requirements; reward and recognise individuals and teams for good work and identify poor performance areas.

Providing employees with a defined framework to work towards, means the measurement of an individual’s performance is fair and consistent with others.

 

Dismissal

Dismissing an Employee

Dismissal is the term used when an employer ends an employee’s contract for one reason or another. It is not against the law to dismiss an individual but the context in which it is done can have undesirable consequences. The different types of dismissal include:

• Fair dismissal;
• Unfair dismissal;
• Constructive dismissal;
• Wrongful dismissal.

The different types of dismissal

A dismissal is deemed to be fair or unfair depending on the circumstances surrounding the decision; what the justification for it is and how the process is carried out.

An employer must have a valid reason to dismiss an individual, whether this be performance related, redundancy or conduct related.

Constructive dismissal occurs when an employee takes the decision to resign from their position because there has been a breach of their employment contract and they have no other option than to leave. Examples of this include; their wages being cut without them being notified, being forced to work in dangerous conditions or being subjected to bullying or harassment.

Wrongful dismissal is where the terms of an employee’s contract are broken during the dismissal process, for example not providing sufficient notice of their dismissal.

If an employee thinks they have been dismissed unfairly, constructively or wrongfully they are able to take their employer to an Employment Tribunal for further action. This is why it is important that employers set out their dismissal rules and procedure in writing, because if it is missing the tribunal can order the employer to pay an employee compensation on these grounds alone.

 

Settlement Agreements

Settlement Agreements were introduced in July 2013 and can be used to end an employment relationship entirely or resolve an ongoing dispute.

Settlement Agreements are legally binding, written contracts between an employer and employee. It might involve the employer promising to pay a certain sum of money or stop certain unlawful behaviour. Once an agreement has been reached the employee cannot make a claim with regards to the points covered in the Settlement Agreement to an Employment Tribunal or court.

What makes a Settlement Agreement legally binding?

In order for the Settlement Agreement to be legally binding, there is certain criteria that must be met, and this includes;

• The agreement being in writing
• The agreement relating to a particular complaint or proceeding
• The employee having received advice from a relevant independent advisor such as a lawyer, who is then identified within the agreement.
• Details of what the employer and employee are agreeing to.
• The inclusion of a statement that confirms agreement meets the rules about settlement agreements

 

Redundancy

The redundancy process

Undergoing a redundancy process is difficult for both the employer and employee. It is often due to situations out of an employer’s control that result in the need to make redundancies and it can mean losing team members that are highly regarded within the business. They usually occur because a role ceases to exist.

What rights is an employee entitled to if they are made redundant?

If an employee is made redundant, there may be certain rights that they are entitled to. Whether or not an individual is eligible to these rights depend upon their specific circumstances and length of service. The redundancy rights include:

• Redundancy pay – this varies upon length of service;
• The right to a notice period;
• The right to request a consultation;
• The option to move into a different job - internally or externally;
• Time off to find a new job.

Similar to a dismissal, the redundancy selection and process should be fair and justifiable and not based on any grounds that could be classed as discriminatory. An employer may decide to adopt the ‘last in, first out’ approach, ask for volunteers (commonly known as voluntary redundancy) or refer to an individual’s performance records.

Depending on the employee’s length of service, by law, the employer is required to give a certain length of notice, this must not be reduced but can be extended. The same applies to redundancy pay limits.

Employees are entitled to request a consultation on the decision to find out more details surrounding the redundancy and whether there are any alternative solutions or options available.

It is important for employers to be aware that if they are making 20 or more redundancies at any one given time, collective redundancy rules apply, and a representative must be instructed to act on behalf of the individuals.  

 

Other Employment Matters (statutory rights)

Employers have a duty of care to their employees and are responsible for following the relevant rules and procedures with regards to the rights of their employees. Failure to do so can result in serious consequences.

It is not solely the responsibility of the employer though; employees should also be aware of their responsibilities and their rights with regards to pay, time off and working hours.  

There are certain employment rights all employees are entitled to, regardless of the job they have and assuming they meet the eligibility criteria.

The basic employment rights a worker is entitled to includes:

• Getting paid the National Minimum Wage;
• Protection against unlawful deductions from wages;
• Statutory holiday entitlement;
• Statutory number and length of breaks whilst at work;
• To not work more than 48 hours on average per week unless they have stated otherwise;
• Protection against unlawful discrimination;
• Protection for whistleblowing.

Pay

There are strict rules relating to the minimum amount of money an employee can be paid for the hours they work. For an under 25-year-old the National Minimum Wage governs this amount and for over 25-year-olds it is the National Living Wage.

As of April 2019, all employees should be in receipt of a pay slip. The statement must show gross pay and take-home pay with deductions clearly displayed and explained.  Employers should distribute pay slips on or before the date of payment.

It is also important to be aware of the rules relating to equal pay. Employers must give men and women equal treatment with regards to all aspects of pay and benefits. Employees are entitled to know how their pay is made up and if an employee thinks they are not receiving equal pay, they can write to their employer asking for information to help them to establish whether this is the case and if so, why.

Gender Pay Gap reporting was introduced in 2017 and requires employers with 250 or more employees to publish and report specific information about their gender pay gap. The gender pay gap is the difference between the average earnings of men and women and employers must both publish their data and written statement on their public-facing website and submit their date online via the gender pay gap reporting service. 

Time-Off

Absence

All organisations experience times where members of staff are absent from work; planned, unplanned, authorised and unauthorised. It is advisable that employers have a robust absence procedure in place that outlines the process that should be followed if an absence occurs. Ideally the procedure will cover how an employee notifies the employer of their absence, sick pay and the return to work policy, as a minimum.

Holidays

All employees are eligible to paid holiday leave. The amount of holiday leave an employee is granted will depend upon the number of days and hours the individual works. Whether or not a holiday request is approved is at the employer’s discretion, and employers are able to restrict when leave can be taken should they so wish. 

Children and Dependents

Parents are entitled to take time off for dependents and possess the right to request flexible working.

Flexible Working Requests

Flexible working requests come in varying forms; it may be to do with the location where the work is carried out, the hours or days worked, or type of contract the employee is tied to.

After 26 weeks in employment, any employee can request flexible working. Requests must be submitted in writing and the employer must consider and decide upon whether to grant the request within 3 months. In order to reject a request, the employer must have a sound business reason to justify their decision.  

Maternity Leave

Employees who become pregnant qualify for up to 52 weeks’ maternity leave. The first 26 weeks are classed as ordinary maternity leave and the second 26 weeks are classed as additional. Depending upon the individual’s circumstances they will be entitle to some degree of maternity pay; statutory maternity pay, contractual maternity pay or maternity allowance.

Paternity Leave

Paternity leave permits fathers to take either 1 or 2 consecutive weeks off work to care for their new baby. The time can commence from the day the baby is born or a certain number of days afterwards, the only stipulation is that the leave must be completed within 56 days of the baby being born. Similarly, the father may be entitled to either statutory paternity pay or contractual paternity pay.

 

TUPE – Transfer of Undertakings (Protection of Employment) Regulations 2006

TUPE refers to the Transfer of Undertakings (Protection of Employment) Undertakings Regulations 2006 and is in place to protect employees. TUPE rules apply when there is a business transfer, a change in service provider or because of an asset sale of the whole business. The rules apply to all businesses regardless of size, industry and turnover.

When TUPE rules are applied the employee’s job will transfer to the new company along with their employment terms and conditions automatically. TUPE rules protect employees from dismissal and provide them with a right to consult with representatives over the change.

The current employer must provide all of their employee details to the new employer, this includes their employees’ identities, particulars of employment, processes and procedures, agreements and legal matters - historic and ongoing. It is also the current employer’s duty to inform their employees of the change, notifying them in writing is favourable as a consistent message can be delivered to everyone at the same time. It is at this point that the decision to hold a consultation with employees may be made, it is not compulsory unless the new employer proposed to make changes.

 

Employment Law support from Lawson-West Solicitors.

If you wish to find out any more information about any of the topics covered within this article, our Employment Team is on hand to answer any of your questions. Based from 3 offices throughout Leicestershire; Market Harborough, Wigston and Leicester, a member of the team can meet you at a location most convenient to yourself. Simply call 0116 212 1000 to arrange an appointment or use our online contact form and we will contact you directly.

 

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

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