Employment Law
Three main areas
anti-discrimination laws (but these
usually cover much more than just
employment);
 laws governing trades unions and
their activities and their
relationships with employers;
 laws relating to the welfare of
individual employees and their
relationships with their employers.
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Unlawful discrimination
sex;
 race, colour, ethnic origin;
 disability;
 religion (from December 2003);
 sexual orientation (from December
2003);
 age (from 2006).
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Major pieces of legislation
Equal Pay Act 1970
 Sex Discrimination Acts 1975 and
1986
 Race Relations Act 1976
 Disability Discrimination Act 1995
 Employment Equality (Religion or
Belief) Regulations 2003
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Equality Act 2010
The characteristics that are protected by the Act
 age
 disability
 gender identity and gender reassignment
 marriage or civil partnership (in employment only)
 pregnancy and maternity
 race
 religion or belief
 sex
 sexual orientation.
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What is discrimination?
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direct discrimination:
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treating one person less favourably than
another purely on grounds of sex or race,
etc.;
indirect discrimination:
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imposing a requirement that:
• can be satisfied by a much smaller proportion of the
people from one sex or one racial group than from
another;
• cannot be shown to be justifiable by the needs of
the job.
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Discrimination on grounds
of disability
treating a disabled person less
favourably without justification;
 failing to make a reasonable
adjustment without justification.
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Enforcing antidiscrimination legislation
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Court action can only be initiated by the
Equal Opportunities Commission (sex
discrimination), the Commission for Racial
Equality (racial discrimination) or the
Disability Rights Commission, except that,
individuals can take allegations of
discrimination relating to employment
directly to an Employment Tribunal.
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Industrial tribunals (labour courts
in other countries)
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set up to handle cases of unfair dismissal
and discrimination in employment
matters brought by individuals;
simpler and cheaper than the ordinary
civil courts;
but legal or trade union representation is
desirable;
limited powers but can award
compensation and order reinstatement;
appeals are possible but rare (and rarely
successful).
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A trade union is
“An organisation of workers created to
protect and advance the interests of
its members by negotiating
agreements with employers on pay
and conditions of work. Unions may
also provide legal advice, financial
assistance, sickness benefits and
education facilities.”
(ACAS)
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A trade union is recognised by an
employer when
it negotiates agreements with the employer
on pay and other employment conditions on
behalf of a body of workers (known as the
bargaining unit). This is called collective
bargaining.
Recognition can be the result of voluntary
agreement between employer and union or
it can be statutory, i.e., enforced by law.
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Labour relations (pre 1980)
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collective bargaining and collective
agreements, not legally enforceable;
many strikes, often unofficial;
strikes called against the wishes of the
majority of workers;
violent picketing;
secondary action;
management not allowed to manage;
restrictive practices and over-manning.
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Trade Unions (pre-1980)
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unions immune to actions for tort and
breach of contract in relation to ‘trade
disputes’;
closed shop;
problem of multiple unions and
differentials;
driven by a small number of activists;
political levy.
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Employment Act 1980
secondary action made unlawful;
 pickets could only picket their own
place of work;
 unions encouraged to ballot their
member before taking strike action.
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Employment Act 1982
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redefined ‘trade dispute’ as a dispute
between workers and their employer
relating “wholly or mainly to terms of
employment”;
union legal immunity removed when they
authorise unlawful industrial action;
improved rights for workers in closed
shops.
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Employment Act 1984
required unions to hold ballots
before taking industrial action;
 if no ballot held, then the union lost
its immunity from legal action.
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http://news.bbc.co.uk/1/hi/uk/3534
415.stm
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Employment Acts 1988 and
1990
Tinkering at the edges:
 procedural changes for ballots;
 unlawful to discriminate on grounds of
membership or non-membership of a
union;
 union liable for damages arising from
unofficial action unless explicitly
repudiated;
 selective dismissal of strikers permitted.
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Trade Union and Labour Relations
(Consolidation) Act 1992
Replaces previous legislation and
brings it all together in a single act
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ACAS (Advisory Conciliation
and Arbitration Service)
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founded in 1896;
present name and structure date from
1974;
mission is “preventing and resolving
problems in the workplace”, through
conciliation, mediation and arbitration
services;
publish very helpful guides to good
practice;
excellent web site.
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Aberystwyth
Individual employment
rights
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unfair dismissal (Industrial Relations Act 1971);
contracts of employment;
right not to be discriminated against;
maintenance of rights when transferred (TUPE regulations
1981, as amended, resulting from European Acquired
Rights Directive, 1977,2001);
right to join a union of your choice or not to join one
(Trade Union Reform and Employment Relations Act,
1993);
limits on hours (EU Working Hours Directive 1993, UK
Working Time Regulations 1998);
statutory sick pay;
’family friendly’ rights (Employment Relations Act 1999
and Employment Act 2002).
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Trade Union Reform and
Employment Relations Act 1993
gives employees the right to join a
union of their choice;
 permission required to deduct union
subscriptions at source;
 extends the circumstances in which
unfair dismissal can be claimed;
 extended maternity provisions.
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Employment Relations Act
1999
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equality of treatment for part-time
workers;
parental leave and ‘family-friendly’
policies;
increased protection against unfair
dismissal;
abolished the Commissioner for the
Rights of Trade Union Members and the
Commissioner for Protection Against
Unlawful Industrial Action.
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Employment Act 2002
paternal leave;
 adoption leave;
 dispute resolution;
 improved Industrial Tribunal
practices;
 equal pay questionnaires.
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Grounds for fair dismissal
conduct
 capability
 redundancy
 statutory requirement
 something else.
But the employer must follow proper
procedures (due process).
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Public Interest Disclosure
Act 1998 (PIDA)
protects employees
 who make disclosures about malpractice to their managers
or bodies such as the HSE or the FSA provided the
employee has reasonable grounds for the disclosure and it
is made in good faith
 who make disclosures about malpractice more widely (e.g.
to the police, the press or an MP) provided it was not done
for personal gain and
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reasonably believed they would be victimised if they raised it
internally or with a regulator, or
reasonably believed there would be a cover-up if they raised
it internally and there was no regulator, or
had already raised it internally or with a regulator and
nothing had been done.
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Unfair Dismissal
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employer’s failure to follow the proper procedures (the
commonest cause!);
dismissal for any reason excluded by anti-discrimination
legislation;
dismissal for taking part in trade union activities;
dismissal for taking action against an employer to enforce
employment rights;
dismissal on grounds of pregnancy;
dismissal for refusing to do shop or betting work on a
Sunday;
dismissal for not being a member of a trade union;
and many more.
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Constructive dismissal:
a fundamental breach, by the
employer, of an employee’s contract
of employment, which effectively
indicates that the employer no
longer intends to be bound by it.
The employee can have recourse to
an industrial tribunal as if an actual
dismissal had taken place.
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Contracts of employment
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the fact of employment brings a legal
contract into existence, whether or not it
is in writing;
employers must provide employees with
a written statement of the main terms of
employment;
it is good practice to provide a full,
written contract of employment, signed
by both employer and employee.
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Express terms and implied
terms
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Express terms are term that are explicit
in the contract.
Implied terms that a court will regard as
always existing, even though they are not
explicitly stated. They may arise from:
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statute (e.g. the employer must provide a
safe system of work);
common law (e.g. employees must exercise
reasonable care and skill);
custom and practice of the industry.
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Employee or self-employed
(freelancer, contractor)
Pros and cons of being self-employed:
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for worker:
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more money;
less tax (probably);
more freedom;
no employment rights (security, parental leave, sick pay,
etc.)
for employer:
• easier and cheaper to get rid of if money short or no
longer needed;
• only paid for what they do;
• can hire in expensive specialised knowledge just for when
it is required;
• may cause less discontent among regular staff than
employing expensive specialists at high salaries.
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How to tell the difference
The following factors affect which way you will
be treated:
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do you work for several different organisations?
do you find your own work?
are you paid per job done or at regular intervals?
if you are sick or otherwise unable to do a job, is it up
to you to find someone else to do it?
who supplies the tools and equipment you use?
The Inland Revenue, the Department of Social
Security, and the courts do not necessarily all
treat you the same!
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Aberystwyth
Useful web sites
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http://www.equalitydirect.org.uk/map.htm
http://www.acas.org.uk/a-z_index.html
Both these sites are run by ACAS and contain many
documents describing good practice (as opposed to legal
requirements) in anti-discriminatory practice.
http://www.embrase.org.uk/
Good descriptions of the requirements of the EU’s Equal
Treatment Framework Directive 2000/78.
http://www.dti.gov.uk/er/regs.htm
Department of Trade and Industry website with a lot of
well-written information about employee relations.
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Aberystwyth