Uploaded by Marc O'Donnell

5EML Assignment by Marc O

5EML – Employment Law
5EML Assignment by Marc O'Donnell
5EML – Employment Law
1.1 Explain the purpose of employment law and how it is enforced.
Employment law is used to provide the foundations on which the relationship between the employer and the
employee are built upon. The CIPD defines employment law as:
“Employment law regulates the relationship between employers and employees. It governs what employers
can expect from employees, what employers can ask employees to do, and employees’ rights at work.”
https://www.cipd.co.uk/knowledge/fundamentals/emp-law#gref accessed 26/06/2021
Employment law is considered as any legislation that is designed to protect the employee form
exploitation, without the enforcement of employment law. Employers would have no legal requirement to
treat workers fairly, pay them suitable wages for the work completed and ultimately create a workforce
devoid of responsibility for the welfare and protection of its workers or itself. Without the structure
provided by employment law business would not have any requirement to uphold the morals of British
values of equality and fair treatment in line of with the Equality Act 2010 and its 9 protected characteristics
and the distribution of moral social justice would collapse.
For Law to be applicable, only a legal person can become liable or pursue action under the law. This must
be an actual human being or classed as an artificial person such as a corporation.
Employment law in the UK comes from 3 mains sources:
Statutes: Legislation that come from UK parliament in London or any of the decentralised governments in
Wales, Northern Ireland and Scotland. The central government in London is the only place where laws that
effect all of the other counties in the UK can be passed. All statutes start as bills raised in either the House
of Commons or House of Lords. When a bill has been passed by both Houses of Parliament it ascends to
the Monarch and becomes an enforceable legislative act.
Common Law: Are laws made by the practice and standardisation of law, this will be defined by precedent
in the application and utilisation of law within the UK legal system.The decision of the courts creates
binding law that will inform future decisions. Judges are accountable to the decisions of courts with
superior jurisdiction, but may still over rule decision form the lesser courts.
Laws from the EU: Are laws a set our by the European union As The UK is no longer a member of the European
Union. As s result of Britain leaving the EU, many EU laws were incorporated into UK laws.
5EML – Employment Law
The Courts
The below diagram shows the structure and pathways of the UK court system. As shown the UK court system is
Hierarchal in nature. There are civil courts and criminal courts.
https://www.judiciary.uk/wp-content/uploads/2020/08/courts-structure-0715.pdf Accessed 26/06/2021
The county & tribunal courts do not have the power to create case or common laws they facilitate the application of
the law only. The divisions of Higher court can. This includes the Employment Tribunal Appeals court, Court of
Appeals & Supreme Courts. A losing party can appeal a court’s decision stating one of the lower courts misapplied or
misinterpreted the law. If one of the higher courts make a ruling that ruling is the binding, and all smaller courts
must apply this precedent in future cases.
1.2 Briefly describe the role played by the tribunal and courts system in enforcing employment law.
Tribunals: An employment tribunal is a court that can hear claims involving a breach of an employment contract or
limitation of their of worker’s rights. Claims can brought against an employer or prospective employer who has acted
unlawfully in the application of employment matters and is applicable by the Tribunals, Courts & Enforcement Act
Some claims regarding employment disputes may be heard in other courts, such as County Court or High Court. If an
employee does not possess 2 years minimum service (unless Discrimination based) to be considered at tribunals
court they may still pursue the claim in County/High court. Alternatively some cases may be heard at criminal court,
If an employer caused injury due to breaching health & safety legislation for example.
5EML – Employment Law
Cases you may encounter at
Tribunal courts
Unfair Dismissal
Unfair Deductions of Pay
Unfair/Failure to consult
Breach of Contract
Detrimental treatment due to time
off requirements/ union
1.3 Include how cases are settled before and during formal legal procedures.
The Tribunal Process
https://www.collascrill.com/knowledge-documents/guides/tribunal-flow-chart/ - Accessed 30/06/2021
Before Tribunal
Preventative measures: Tribunal Cases can be expensive and time consuming. A combination of effective and legally
compliant policies, skilled managers, and training can all support in reducing the likelihood of tribunal action be
brought against you. The importance of having a clear policies as well as a supportive culture cannot be
underestimated. In the event relationships continue to break down, mediation can be used to help the parties reach
a state of communication and allow those constructive conversations to resume.
Settlement Agreements: The respondent can make an offer to the employee outside of the early conciliation or
tribunals process, normally by providing compensation. Settlements are normally accompanied by non-disclosure
agreements so once the issue has been resolved the employee can no longer make a claim against the respondent.
5EML – Employment Law
Early Consideration: As of 2014 all tribunal claims must first go through ACAS’s free early consideration process.
ACAS will intermediate between the claimant and the respondent. ACAS will discuss with both parties and if willing
will work to reach an agreement to end the dispute. If an agreement is reached a COT3 form will be issued, once
agreed the settlement is legally binding even if not signed. The 3-month tribunal deadline can be extended to
support early reconciliation which usually takes around 6 weeks. If no agreement can be made ACAS will issue a ET1
form which is required for a tribunal case to be heard.
During Tribunal: The tribunal court will issue directions to both parties on the tribunal process upon receipt of the
ET1 form(Claimant), ET2 Form (Respondent) & £250 court fee. The judge plays a key part in ensuring all parties
involved are aware of the process and ensures it is accessible. A case management meeting is held to confirm what
documents & witness are required prior to the public court proceedings.
A tribunal can be heard by a singular judge who specialises in employment law, or via a panel normally consisting of
3 members headed by employment law specialist judge. The tribunal case may involve, witness testimony and both
the claimant & the respondent or their legal team will examine, and cross examine the evidence and the judge or
panel will then deliver a decision either in person after a recess or later in writing to both parties.
Consideration can be made at any point during this process if both parties agree to terms. Otherwise if the tribunal
declares the result and if compensation is owed.
Appeal: You can only appeal on a point of law the either party must identify flaws in the legal reasoning or
application of the original decision within 42 days. This appeal will then be heard by the Employment Appeals
Tribunal. The EAT will then consider if your appeal has grounds for consideration. If there are ground another case
will be heard, if not the request will be denied. Either party can escalate on the terms of law again to the appeals
court within 21 days.
2.1 Outline the key points of the principles of discrimination law in recruitment, selection, and employment that
you would include in your presentation.
The Key Legislations to consider
The Equality Act 2010: Highlights 9 protected characteristics that makes the discrimination, harassment, and unfair
treatment on the basis of those 9-characteristic unlawful. The act protects not only an individual rights in the
workplace but also as a consumer and in education.
https://sesandspccg.nhs.uk/about/equality-and-diversity - accessed 30/06/2021
5EML – Employment Law
Fairer recruitment: The Three Stages
The Advert & Job Description
Application, Shortlisting &
Interviews Process
Pre employment checks
Direct Discrimination: Treating someone unfairly because of protected characteristic, perception that they possess a
protected characteristic or their association with someone who has a protected characteristic.
Indirect Discrimination: An Organizations policies or procedures creates a disadvantage for someone with a
protected characteristic.
Victimisation: Being treated unfairly due raising complaints or grievances against the Equality Act 2010 either on
their own behalf or that of someone else.
Harassment: Harassment is unwanted targeted behaviour which you find offensive, or which makes you feel
intimidated or humiliated that is degrading or that violates a persons dignity, in relation to a protected characteristic.
These behaviours can direct at the person or others.
Bias: Bias can happen both consciously and subconsciously. Bias creates prejudice in favour of one person or action
over another which creates an unfair advantage. The Equality Act makes the unfair treatment because of a
protected characteristic unlawful. Unconscious bias is when an individual is not aware of their bias or how it creates
an unfair situation. These are normally structured around social stereotypes.
Avoiding Discrimination in
Advert: When writing an advert
use non gender specific language.
Ensure that any limiting factors
within the advert are for a genuine
reason and are not likely to cause
discrimination towards applicants
with protected characteristics. E.g
We are recruiting a German
administrator. Applicants must be
young and hold a Degree in
Age Discirmination
Race Discrimination
Bias – A fluent German speaking
administrator should be able to
apply if they were educated to
Avoiding Discrimination in
Application: Ensure the
application process is accessible
for all or offer reasonable
adjustments. Ensure that that if
the post is internal that all
members of the team have equal
opportunity to apply especially if
at risk of redundancy which may
be considered in isolation before
other applicants. Keep the
process structured and only
obtain information that is
relevant to the job role.
Shortlisting: Ensure the criteria in
the Job Description is used
objectively to assess candidates.
Keep applications anonymous
Avoiding Discrimination in Selection
Preemployment Checks: Conduct right
to work checks at the appropriate time
and allow any background check
processes be clearly communicated
upon successful interview. Ensure that
any reasonable adjustments are
considered for those with potential
5EML – Employment Law
degree level. They don’t have to
have a degree in German.
Job Description: To ensure you
avoid discrimination its important
to carefully consider what are the
essentials and desirable criteria. As
the organisation will need a
legitimate reason to exclude on
that basis.
and limit access of managers to
Equality & Diversity information
to prevent unconscious bias.
Interview: Ensure questions are
competency based and challenge
skills required for the role. Ensure
the interview scoring process is
applied to all candidates equally.
Ensure managers are aware of
the unconscious bias and are
suitably trained. Have a diverse
interview panel of a minimum of
3 people
2.2 How contracts of employment are established.
Within in employment law a person employment status will determine what rights they have under the Employment
Rights Act 1996 and amendments. These rights will be included within an organisation policy or employment
contracts. There can be some ambiguity regarding employment status and the common law test can be used to
confirm employment status.
Employment Status And their Employment Rights
https://www.truthlegal.com/what-are-my-rights-employment-status-and-the-gig-economy/ accessed 30/06/2021
5EML – Employment Law
The main types of employment status are:
The terms of a contract are usually what will determine what status a worker has these are key to determining the
relationship between employer and employee/worker.
Statutory Terms: Parts of the contract which are ringfenced by legislation, such as the right to rest breaks as set by
the Working Time Regulations.
Express Terms: Terms that have been mentioned and agreed between the two parties when the contract Is created.
Such as salary, how many hours a week etc
Implied Terms: Obvious terms that do not need to be committed in writing or agreed verbally such as the employers
commits to a duty of care to maintain the wellbeing of the employee.
Incorporated Terms: Incorporated terms will be listed in another documents and often cited within the contract
between two parties. For example an employer can refer a employee to its employee handbook and must make
reasonable effort to bring this to the employee attention or make it accessible. As the incorporated terms of the
contract will be that you agree to adhere to the principles set in the employee handbook.
5EML – Employment Law
The common Law Test Can be used to identify the terms of the contract and confirm which status the person will
Integration Test
Economic Reality Test
Mutuality of Obligation
What degree of control is exercised by the
How does the individual contribute
to the organisation?
Who bears the financial
Who decides what is to be done, when, how,
where, for how long etc?
Is the work an integral part of the
business or organisation?
Who provides the
Is there an obligation on
the organisation to offer
Does the organisation retain “ultimate authority”?
Focus is on the organisation of work
rather than control
Is an individual “in
business on their own
Is there an obligation on
the individual to accept
The more financially
independent the
individual is, the more
What other obligations are
there between them?
The more the individual is under the direction and
control of the organisation – the more likely they
are to be an employee
This test used to be conclusive but now it is
recognised that employees have a degree of
autonomy which may be consistent with selfemployment.
Appropriate to a highly skilled work
where the control test may not be
appropriate e.g. doctor,
nurse, engineer
The more integral the individual is –
the more likely they are to be an
likely they are to be selfemployed but this is not
always the
Such obligations are likely
to confirm the individual is
an employee.
case. E.g. home works
and casual workers
Table taken form session 2 PowerPoint slides https://hemoodle.cityplym.ac.uk/mod/resource/view.php?id=179655
Case Study Example - https://www.supremecourt.uk/cases/docs/uksc-2019-0029-judgment.pdf - accessed
In February 2021 the supreme court ruled that in the case between Uber and Others v Aslam and Others case that
Uber drivers were indeed workers and not self-employed as Uber had had originally confirmed as their employment
status at the employment tribunal.
The basis of this was due to key terms that conflicted with a self employed workers status.
1. Uber argued that the contract between the drivers and Uber were separate to the contract of the driver & the
passenger. This was refuted as it was indeed Uber who set the prices & terms and conditions for the fares and not
the drivers which if they had ben self employed would have been their prerogative.
2. Drivers could be prevented form working, if they did not accept fares, representing an obligation on behalf of the
driver to Uber
3. Drivers face disciplinary action and potential termination if the drivers rating fell below certain thresholds.
4. Uber were actively restricting drivers ability to work outside of the Uber app and for competitors, converting an
element of control and mutual obligation.
The judge confirmed that the relationship between Uber and its drivers was on built on mutual dependency and
subordination and there award each individual be paid £12000 in damages.
5EML – Employment Law
3.1 Summarise when and how contracts can be changed lawfully
3.2 the main requirements of redundancy laws
3.3 and the main requirements of the law on business transfers
4.1 You are asked to summarise for managers the key issues they need to consider to manage pay, leave and
working time lawfully.
4.2 Ensure you include the major statutory rights, equal pay,
4.3 and maternity, paternity and other family-friendly employment rights.
5.1 Identify the major requirements of health and safety law
5.2 and the significance of implied duties as regards the management of employees at work.
5.3 Then explain the principles of the law on freedom of association.
6.1 Explain the main requirements of unfair dismissal law in respect of capability and misconduct issues,
6.2 and the scope of the right for employees to be accompanied at serious discipline and grievance hearings.
5EML – Employment Law
https://www.cipd.co.uk/knowledge/fundamentals/emp-law#gref accessed 26/06/2021
5EML – Employment Law
https://www.judiciary.uk/wp-content/uploads/2020/08/courts-structure-0715.pdf Accessed 26/06/2021
https://www.collascrill.com/knowledge-documents/guides/tribunal-flow-chart/ - Accessed 30/06/2021
Table taken form session 2 PowerPoint slides https://hemoodle.cityplym.ac.uk/mod/resource/view.php?id=179655