Employment Practice

Cooperation, Employee's Duty Of

2010-07-28T03:50:00.000-07:00

Key points

§ Implicit in every contract of employment is the employee's duty to cooperate with his (or her) employer. This means obeying his employer's lawful and reasonable instructions, and doing his job efficiently and to the best of his capabilities.

§ The shop assistant who is dilatory in attending to the needs of customers, or the secretary who takes two hours to type a one-page memorandum, could each be said to be lacking in cooperation even though both might argue that they are doing what they have been paid to do, if not as fast as their employer might wish.

§ The receptionist at the front desk who is always grubby and untidy, or who deals with clients and visitors in a peremptory fashion, is not only damaging his (or her) employer's good name and commercial objectives, but is also in breach of contract and is liable to be dismissed.

§ Whether or not such conduct justifies summary dismissal would depend on the seriousness of the offence, its immediate consequences, the size of the employer's organisation and the damage it has caused. The manager who swears at a valued client could justifiably be dismissed 'on the spot', although a preliminary investigation of the facts and circumstances is always advisable in such cases (especially if his (or her) conduct is wholly out of character). An employee, on the other hand, who is somewhat curt with a client, should be taken to one side and cautioned that a repetition could result in dismissal.

Note

As was pointed out by the House of Lords in Polkey v Dayton Services Limited [1987] IRLR 503, it is an unwise employer indeed who ignores his (or her) own disciplinary procedures when dismissing an allegedly uncooperative employee (or, for that matter, any employee). A failure to consult or warn an employee about the consequences of his (or her) actions (or to dismiss that employee on the spot without benefit of even a cursory investigation of the circumstances) will usually be held to have been unfair.

§ The implied duty of cooperation often finds expression in the disciplinary or house rules made known to employees when they first start work with their employer. In the absence of such rules, an employment tribunal might well challenge an employer 's 'reasonableness' in dismissing an employee who is unaware of the standard of conduct expected of him (or her).

Overtime working

§ An employee who refuses to work overtime on an isolated occasion would be less at risk than the employee who refuses to work overtime on any occasion (but see Note below). Again, a great deal will depend on the circumstances at the relevant time (including the size and administrative resources of the employer's undertaking). For example, a refusal to work overtime in a small organisation employing just a handful of staff could do serious damage to the employer's business; in which event, a dismissal for a first refusal might well be justified. In a larger establishment, such as a factory employing several hundred people, a first refusal might lead to a verbal or written warning.

Note

The reader will be aware that, under the Working Time Regulations 1998, adult workers have the right to refuse to work more than an average 48 hours a week (including overtime hours) and young workers more than 40 hours a week. An employer who flouts the 1998 Regulations is liable to prosecution and a heavy fine. Furthermore, any worker who is subjected to a 'detriment', or dismissed or selected for redundancy, for refusing to work more than an average 48-hour week, may complain to an employment tribunal and will be entitled to compensation.

§ If an employee is expected to work overtime, when and as asked to do so, that requirement should be spelled out in no uncertain terms at the job interview and reinforced in the written statement of terms and conditions of employment issued to employees in accordance with sections 1 to 7 of the Employment Rights Act 1996.

Mobility clauses

§ The employee who refuses to transfer from one location to another (eg, from a factory in Manchester to a sister factory in Bristol) could not be said to be lacking in cooperation if there is no express (or implied) mobility clause in his (or her) contract of employment. Indeed, an employer's insistence on such a transfer could very well prompt the employee to resign and pursue a complaint of unfair constructive dismissal. In some organisations (banks, hotels, building societies) it is standard practice for up-and-coming junior managers and graduate trainees to 'move about' – both to gain experience in their particular business or industry and to enhance their career prospects. Although there will undoubtedly be circumstances in which employment tribunals will identify an implied mobility clause in an employee's contract of employment, employers would be well-advised to stress this requirement both at the initial employment interview and as an express term in the written statement (or job description) issued to an employee when he or she first starts work.

Convicted Persons, Employment Of

2010-07-25T05:47:00.000-07:00

Key points

§ The Rehabilitation of Offenders Act 1974 effectively entitles a person with a previous criminal record to withhold information about any spent convictions when he (or she) applies for a job. Although there are exceptions to this general rule (see below), the rationale behind the 1974 Act is to encourage the rehabilitation of people whose criminal records would otherwise deny them an opportunity to seek, obtain or retain gainful employment.

Note

Under Part V of the Police Act 1997 (discussed later in this section), employers seeking reassurance about the suitability of job applicants for certain types of work (eg, work involving the care and supervision of persons under the age of 18) will be afforded an opportunity to seek and obtain information about convictions which have not become spent or, in exceptional circumstances, to receive details about all of an employee's (or would-be employee's) convictions (spent and otherwise).

§ A conviction becomes spent if the person in question is not again convicted of an indictable offence within a specified period of years beginning with the date on which he (or she) was convicted and sentenced. The length of the rehabilitation period is determined by the nature of the offence, the length of sentence imposed by the court, and the age of the offender at the material time.

Note

An 'indictable offence' is an offence triable by a judge and jury in the Crown Court.

Effect of a 'spent' conviction

§ Once a conviction has become spent, the person convicted is treated in law (subject to exceptions) as if the offence and the conviction had never occurred. Although there is nothing to prevent a prospective employer asking a job applicant whether he (or she) has ever been convicted of an indictable offence inside or outside Great Britain, or served time in prison, or been in trouble with the police, the candidate is equally entitled to answer 'No' in relation to any convictions that are spent. He cannot lawfully be refused employment for failing to reveal details of those convictions; nor can he be dismissed or otherwise prejudiced if, at a later date, his employer discovers that he concealed details of a spent conviction at the employment interview. Section 4(2) of the Act states that 'where a question seeking information with respect to a person's previous convictions, offences, conduct or circumstances is put to him the question shall be treated as not relating to spent convictions or to any circumstances ancillary to spent convictions, and the answer thereto may be framed accordingly'.

§ It follows that any employee dismissed for having (or concealing) a spent conviction would be justified in presenting a complaint of unfair dismissal to an employment tribunal – given that the reason for his (or her) dismissal is unlikely to amount to 'some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held' (but see Excepted occupations below). But, to qualify to bring a complaint of unfair dismissal, such an employee would need to have been continuously employed for at least one year and have been under normal retiring age at the effective date of termination of his contract of employment. Without those qualifying conditions, his only other recourse would be to pursue an action for damages in the ordinary courts.

Note

In Property Guards Limited v Taylor & Kershaw [1982] IRLR 175, the EAT held that the dismissal of a security guard, for failing to disclose a 'spent' conviction, was unfair – the more so as the job of security guard (although requiring a person of good character) is not one of the excepted occupations listed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (see Excepted occupations below).

Sentences excluded from rehabilitation

§ Certain sentences are excluded from rehabilitation even if the person convicted is released from prison (for whatever reason) before serving- out his full sentence. These are:

o a sentence of imprisonment for life;

o a sentence of imprisonment, youth custody, detention in a young offender institution, or corrective training for a term exceeding 30 months;

o a sentence of preventive detention;

o a sentence of detention during Her Majesty's pleasure, or for life, or under section 205(2) or (3) of the Criminal Procedure (Scotland) Act 1975, or for a term exceeding 30 months, passed under section 53 of the Children & Young Persons Act 1933 (young offenders convicted of grave crimes) or under section 206 of the 1975 Act (detention of children convicted on indictment) or a corresponding court martial punishment; and a sentence of custody for life.

Any other conviction and sentence is subject to rehabilitation under the 1974 Act.

Unauthorised discovery or disclosure of 'spent' convictions

§ In practice, it is unlikely that an employer will learn of a spent conviction through official channels. Indeed, if he attempts to obtain such information from police or court records (or from records maintained by a local authority or other official agencies), he will meet with a sharp rebuff. If he obtains any information concerning a spent conviction by fraud, dishonesty or bribe, he is guilty of an offence and is liable, on summary conviction, to a fine of up to £5,000 and/or to imprisonment for a term not exceeding six months.

§ It is an offence also for any person having custody of or access to official records to reveal information about a person's convictions to a third party. The penalty on conviction is a fine of up to £2,500.

Excepted occupations

§ Under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, as amended, and by the Osteopaths Act 1993 and the Chiropractors Act 1994, convicted persons seeking employment in the occupations listed below do not enjoy the protection of the 1974 Act. Thus, any person with a spent conviction applying for employment as a:

o medical practitioner;

o barrister, advocate (in Scotland) or solicitor;

o chartered accountant, certified accountant;

o dentist, dental hygienist, dental auxiliary;

o veterinary surgeon;

o nurse, midwife;

o ophthalmic optician, dispensing optician;

o pharmaceutical chemist;

o registered teacher (in Scotland);

o or any profession to which the Professions Supplementary to Medicine Act 1960 applies;

o registered osteopath; or

o registered chiropractor,

must reveal details of any and all convictions, including spent convictions. Such information must also be disclosed in relation to:

o judicial appointments;

o employment in the police force, or in the prison service, or as a traffic warden, or in certain occupations involving the provision of social services or health services; and

o work concerned with the provision to persons aged under 18 of accommodation, care, leisure and recreational facilities, schooling, social services, supervision or training.

Other regulated occupations include that of firearms dealer; a director, controller or manager of an insurance company; a dealer in securities; a manager or trustee under a unit trust scheme; a person applying to the police or to a court of summary jurisdiction for a licence to keep explosives; and a person seeking a Gaming Board licence.

§ Answers to questions relating to any offence involving fraud or dishonesty, which are put to a person by a building society (or by or on behalf of the Building Societies Commission), in order to assess the suitability of that person to be a director or other officer of a building society, must likewise reveal details of all such convictions (spent or otherwise).

References

§ An employer may disclose details of a spent conviction in a reference given to a prospective employer, always provided that the disclosure is made without malice or as the result of information improperly obtained. Otherwise, he could be sued for damages for libel and will not be entitled to rely upon the defence of 'justification'. If he chooses not to reveal that information and is subsequently sued by the second employer for the tort of deceit, the 1974 Act provides him with a statutory defence. Section 4(2)(b) states that any person questioned by another person about an employee's (or would-be employee's) previous convictions 'shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent conviction or any circumstances ancillary to a spent conviction'.

On balance, an employer would be well-advised to keep such information to himself.

Personnel records

§ Personnel records containing details of employees' convictions should likewise be kept well away from prying eyes, bearing in mind also that any convictions that were not spent at the time those records were prepared could well become spent with the passage of time.

Police Act 1997

§ Provisions in the Police Act 1997 enable employers who are suspicious (or remain unconvinced) that people applying for excepted occupations and other sensitive jobs (including work with children and young persons under 18) are telling the whole truth when claiming that they have no criminal convictions (spent or otherwise).

The scheme is administered by the Criminal Records Bureau (CRB) (an executive agency of the Home Office). The Bureau may issue:

a. a criminal conviction certificate (CCC);

b. a criminal record certificate (CRC); or

c. an enhanced criminal record certificate (ECRC)

to any individual (or, where appropriate, to any registered body corporate or unincorporate) who or which applies for such a certificate (using a form prescribed for that purpose) and who pays the prescribed disclosure fee (£12). The registration fee for bodies corporate or unicorporate is £300 (and for each countersignatory: £5).

Criminal conviction certificate

§ An employer seeking to fill a particular vacancy (eg, as a nightwatchman or as a security guard) may require a job applicant to produce a criminal conviction certificate (CCC) in support of his (or her) application. The latter will give prescribed details of the applicant's every criminal conviction (other than a conviction which has since become spent within the meaning of the Rehabilitation of Offenders Act 1974). If there is no record of any unspent convictions, the CCC will state that fact (ibid. section 112).

§ An applicant who has been issued with a CCC will not normally be issued with another CCC for a prescribed period. In this context, the term 'prescribed' means prescribed by regulations made by the Secretary of State.

Criminal record certificate

§ A criminal record certificate (or CRC) is a certificate which gives the details of every conviction (including every spent conviction) and every police caution in respect of an offence admitted to by the applicant at the time the caution was given. A CRC may be required by a would-be employer in support of a person's application for employment in (or appointment to) one of the excepted occupations listed earlier in this section. As with a CCC, a CRC may also state that the applicant has had no criminal convictions or cautions (ibid. section 113).

§ Every application for a CRC using the prescribed form must be counter- signed by a registered person and be accompanied by the prescribed fee. A copy of the CRC, once issued, will be sent directly to that registered person. The term 'registered person' means either a body corporate or unincorporate (eg, a private or public limited company, or a partnership), or a person appointed to an office by virtue of an Act of Parliament, or an individual who employs others in the course of a business. The names of all persons or bodies registered for these purposes will be listed in a register maintained by the Secretary of State.

§ A body or individual applying for registration must satisfy the Secretary of State that he (or she) is likely to ask exempted questions or, in the case of a body corporate, is likely to countersign applications for CRCs at the request of bodies or individuals asking such questions. Exempted questions are questions relating to an excepted occupation (see above) in response to which a job applicant is obliged to disclose details of every criminal conviction, spent or otherwise.

Note

An application for a CRC by (or on behalf of) a Minister of the Crown must be accompanied by a statement by that Minister that the certificate is required for the purposes of an exempted question asked in the course of considering the applicant's suitability for an appointment by or under the Crown.

Enhanced criminal record certificate (ECRC)

§ An enhanced criminal record certificate (ECRC) will be available to individuals applying for positions which involve regular caring for, training, supervising or being in sole charge of young persons under 18. It will also be available to people applying for certain statutory licensing purposes (see below) and for those being considered for judicial appointments. As is the case with the criminal records certificate (CRC), the ECRC will contain information on 'spent' and 'unspent' convictions and police cautions. It will also include information from local police files including elevant non-conviction information. It could also be made available to those caring for vulnerable adults (per the Police Act (Enhanced Criminal Record Certificates) (Protection of Vulnerable Adults) Regulations 2002 and the eponymous Scotland Regulations 2002 (ibid. sections 115 and 116).

§ The procedure for applying for an ECRC is the same as that for a CRC except that an application for an ECRC must be accompanied by a statement by the registered person who countersigns it that the certificate is required for the purposes of an exempted question asked:

a. in the course of considering the applicant's suitability for a position (whether paid or unpaid) which involves regularly caring for, training, supervising or being in sole charge of persons under 18; or for a position with the same or similar duties and responsibilities which is of a kind specified in regulations made by the Secretary of State; or

b. for a purpose relating to:

o gaming certificates, certificates of consent or licences as prescribed by the Gaming Act 1968;

o registration or certification under the Lotteries & Amusements Act 1976 (societies, schemes and lottery managers);

o a licence under the National Lottery, etc Act 1993 (running or promoting lotteries);

o registration under the Children Act 1989 or under article 118 of the Children (Northern Ireland) Order 1995 (child minding and day care);

o the placing of children with foster parents in accordance with any provision of, or made by, the Children Act 1989 or the Children (Northern Ireland) Order 1995 (welfare of privately fostered children);

o the approval of any person as a foster carer by virtue of the relevant provisions of the Social Work (Scotland) Act 1968, the exercise by a local authority of their functions under the Foster Children (Scotland) Act 1984, or the placing of children with foster parents by virtue of section 70 of the Children (Scotland) Act 1995 (disposal of referral by children's hearing).

Evidence of identity

§ A person applying for a CCC, CRC or ECRC will be expected to produce evidence of his (or her) identity. If there is any doubt as to the true identity of an applicant, he may be required to have his fingerprints taken. Regulations dealing with the taking of fingerprints may make provision requiring their destruction in specified circumstances and by specified persons (ibid. section 118).

Offences: unauthorised disclosure

§ Any member, officer or employee of a body registered for the purposes described above who discloses information contained in a CRC or ECRC is guilty of an offence under the 1997 Act unless he (or she) discloses it in the course of his duties to other members, officers or employees of that registered body who have a direct interest in the information contained in the certificate. The penalty on summary conviction for unlawful disclosure is imprisonment for a term not exceeding six months and/or a fine of up to £1,000 (ibid. section 124).

§ However, no offence is committed if the information contained in a CRC or ECRC is disclosed:

a. with the written consent of the applicant for the certificate; or

b. to a government department; or

c. to a person appointed to an office by virtue of any enactment; or

d. in accordance with an obligation to provide information under or by virtue of any enactment; or

e. for the purpose of answering an exempted question in relation to an application for employment in (or appointment to) an excepted occupation within the meaning of the Rehabilitation of Offenders Act 1974 (as discussed earlier in this section); or

f. for some other purpose specified in regulations made by the Secretary of State (ibid.).

Further information

§ For further information on the work of the CRB (registration, applications forms, codes of practice, publications, frequently asked questions, etc) the reader is commended to websites www.crb.gov.uk and www.disclosure.gov.uk. Employers may write to the CRB at PO Box 110, Liverpool, L3 6ZZ or telephone the CRB's Information Line on 0870 90 90 811.

Data protection implications

§ Under the Data Protection Act 1998, sensitive information, including information about an employee's criminal convictions, may not be stored in a paper-based or computerised filing system without the employee's express permission – unless there is some justification for the keeping of that information and appropriate measures are taken to prevent unauthorised access to it.

Contract of Employment

2010-07-20T06:43:00.000-07:00

Key points

§ A person enters into a contract of employment (or contract of service) with an employer when he (or she) agrees to undertake specified duties (and assume specified responsibilities) in return for an agreed wage or salary. The two essential features of a contract of employment are control and mutuality of obligation. There is 'control' when an employer tells the employee what to do, when to do it and how it is to be done (or, in the case of a highly-qualified and skilled employee, the manner in which it is to be done). But the most important ingredient is 'mutuality of obligation'.

§ As a rule of thumb, there is 'mutuality of obligation'

a. when an employer undertakes to provide a person with work on specified days of the week, for a specified number of hours, and for a specified or indefinite period; and

b. the person in question accepts the employer's offer of employment and undertakes to carry out that work with due diligence and efficiency for an agreed wage or salary, under agreed terms and conditions, and to obey the employer's lawful instructions.

Workers who are hired on a casual or 'as and when required' basis, who can come and go as they please, and who are free (without penalty) to accept or reject any offer of occasional work that comes their way, are not 'employees' in the strict legal sense of the word. Such workers are said to be hired or engaged under contracts suorum generum (that is to say, of their own kind). However, once any such casual arrangement is regularised; once an employer puts such an arrangement on a permanent footing (whether for an indefinite period, or for a specified number of days, weeks or months), and the worker agrees to work for the employer for that period (and on mutually agreed terms and conditions), the worker becomes an 'employee' in the strict legal sense of the word.

Note

Workers who are not employees nonetheless enjoy the rights and protection afforded to all workers (including employees) by legislation such as the Working Time Regulations 1998, the National Minimum Wage Act 1998, the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the Health & Safety at Work etc Act 1974, the Sex Discrimination Act 1975, the Race Relations Act 1976, and the Disability Discrimination Act 1995.

§ This over-simplified definition of a contract of employment (which has no statutory definition) also highlights the difference between an employee and a self-employed person. A self-employed person is engaged under a contract for services. He (or she) owes no loyalty to the person who hires him other than to complete one or more specific tasks within specified time limits in return for an agreed fee. He is his own master, normally provides and uses his own tools and equipment, submits invoices for services rendered, prepares annual accounts for scrutiny by the Inland Revenue, and pays his own taxes and national insurance contributions. He is in business to make a profit and is personally responsible for any losses. He must register for VAT if his annual turnover exceeds a specified amount.

§ A contract of employment comes into being and is enforceable as such as soon as employment commences. The written statement of initial employment particulars required to be issued by an employer to every new employee is not, as is often supposed, a contract of employment. It merely provides evidence of the contractual terms, particularly if the information it contains is limited to that prescribed by sections 1 to 7 of the Employment Rights Act 1996. Other evidence of the contractual terms can be adduced, for example, from a collective agreement, the employee's job description, staff and works handbooks, policy documents, safety rules, custom and practice within the employing organisation or industry, and so on. There are also implied terms.

§ When an employee remarks (or complains to an employment tribunal) that he (or she) has not yet received his 'contract of employment' he is, in reality, talking about the written statement referred to in the previous paragraph. The employer who neglects to provide an employee with a written statement explaining the terms and conditions of the latter's employment is not thereby denying that employee his contractual rights (as some employers appear to believe). Nor does an employer have anything to gain by withholding the written statement until two months after the date on which the employee was recruited. The sooner an employee knows what is expected of him (and what his contractual rights and obligations are), the better.

Working time as a term of contract?

§ Under regulation 4(1) of the Working Time Regulations 1998, an adult worker (whether employee or otherwise) has the statutory right not to work more than an average 48 hours in any week (calculated over a reference period of 17 consecutive weeks). In Barber & others v RJB Mining UK Limited [1999] IRLR 308, the High Court declared that, notwithstanding an employer's duty under regulation 4(2) to take all reasonable steps to comply with regulation 4(1), paragraphs (1) and (2) did not need to be read together. Regulation 4(1) stood alone, and clearly imposed a contractual obligation on an employer to ensure that no person in his employ works more than an average 48 hours a week. That, said Mr Justice Gage, was a mandatory requirement which had to be applied to all contracts of employment.

Duties of employer

§ Although a contract of employment or written statement will rarely say so in as many words, an employer owes a common law and implied contractual duty to his (or her) employees to take reasonable care for their safety. He must provide a safe place of work, safe working methods, safe plant and equipment, suitable training and instruction, competent supervision, and so on. An employee who is injured as a direct result of his (or her) employer's negligence, may sue for damages in the ordinary courts. If the employer is in breach of his statutory duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of the employee in question, he runs the risk also of being prosecuted under the Health & Safety at Work etc Act 1974.

§ An employee has an implied contractual right to be treated with dignity and respect. He (or she) need not submit to foul language or abuse, or to false accusations or, indeed, to any conduct that destroys the very basis of the employment contract. If he is victimised, harassed, disciplined, subjected to any other detriment, dismissed (or selected for redundancy) on grounds of sex, marital status, gender reassignment, colour, race, nationality, disability, trade union membership (or non- membership), or for asserting one or other of his statutory rights in employment (including his right to health and safety protection), he can complain to an employment tribunal. A woman (or man) is entitled to the same pay and conditions enjoyed by men (or women) in the same employment if she (or he) is employed on like work or on work rated as equivalent, or on work of equal value.

§ Any term in a contract of employment that purports to override or negate an employee's common law or statutory employment rights is null and void.

Duties of employee

§ For his (or her) part, the employee must serve his employer honestly and faithfully. He must respect his employer 's property and trade secrets, and must carry out his duties to the best of his abilities. If he ignores his employer's lawful instructions, or is uncooperative, disruptive or negligent in doing the job he is employed to do, he is in breach of contract and runs the risk of being dismissed. However, the common law right of an employer to dismiss an employee is vitiated to an extent by the statutory right of most employees not to be unfairly dismissed (a subject that is discussed at length elsewhere in this handbook).

Strikes and other industrial action

§ A strike, 'go slow' and (in some circumstances) a 'work to rule' is a breach by the employee of his (or her) implied duty to cooperate with his employer. Under the common law, an employee who withdraws his labour or services in this way is deemed to have repudiated his contract and has effectively dismissed himself. In practice, it is open to the employer either to accept the repudiation and bring the contract of employment to an end or to affirm the contract and allow the employee to return to work after the industrial action is over.

§ However, under statute law (notably the Trade Union & Labour Relations (Consolidation) Act 1992, as amended), the selective dismissal of one or more (but not all of the striking workers) or the selective reinstatement or re-engagement of one or more striking workers (following the dismissal of all of them), can be challenged before an employment tribunal – if, but only if, the strike was official (ie, endorsed by the trade union in question following a vote in favour of such action). Any person taking part in an unofficial strike or other unofficial industrial action thereby forfeits his right to complain of unfair dismissal and can be dismissed with impunity (ibid. sections 237, 238 and 238A).

Equality clause

§ Section 1 of the Equal Pay Act 1970 (as amended) cautions that 'if the terms of a contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause, they shall be deemed to include one'. This means that, if a woman is employed on like work with a man (or on work rated as equivalent, or on work of equal value) any term in her contract that is, or becomes, less favourable to her than a term of a similar kind in the man's contract shall be treated in law as so modified as not to be less favourable.

Collective agreements

§ To the extent that a collective agreement between an employer (or an employers' association) and one or more trade unions includes provisions relating to remuneration, working hours, holidays, sickness benefits, and so on, that agreement will be deemed to form part of the individual employee's contract of employment – always provided that his (or her) rights under that agreement are included (or, in one or two instances, referred to) in the written statement of terms of employment issued in accordance with sections 1 to 7 of the 1996 Act.

Termination of contract

§ There are a number of ways in which the contract of employment may be brought to an end. An employee may end his (or her) employment simply by giving the notice prescribed by his contract (or the minimum notice prescribed by section 86 of the 1996 Act, whichever is the greater). He is under no obligation to state his reasons for resigning and may leave once the period of notice has expired. If, on the other hand, he simply walks off the job without giving notice, he is in breach of contract and may, in theory at least, be sued for damages. In practice, few employers would consider the exercise worthwhile. If, on the other hand, an employee terminates his employment without notice, in circumstances in which he is entitled to do so by virtue of his employer 's conduct, he has been effectively dismissed and may (subject to the usual qualifying conditions) pursue a complaint of unfair 'constructive' dismissal before an employment tribunal.

§ Under the common law doctrine of frustration, a contract of employment may also be brought to an end by the death, imprisonment or prolonged illness of either party to that contract. However, in the light of the provisions of the 1996 Act, an employer would be ill-advised to invoke the doctrine of frustration when challenged to explain the 'dismissal' of a sick or injured employee absent from work for a prolonged period. On the other hand, frustration may be invoked if an employee has been sentenced to a lengthy term of imprisonment (even if he or she has lodged an appeal) (per Hare v Murphy Brothers [1974] ICR 603 (CA) and Harrington v Kent [1980] IRLR 353).

§ A contract of employment may also be terminated by the employer – either because the contract itself (being a 'limited-term contract') has expired (and is not renewed under the same contract), or for a reason related to the capability, qualifications or conduct of the employee, or if the termination in question is tantamount to a constructive dismissal. Section 98(2) of the 1996 Act allows that an employee can also be lawfully dismissed because his (or her) continued employment would be illegal, or on grounds of redundancy, or for 'some other substantial reason' of a kind such as to justify the dismissal of an employee holding the position which that employee held. Whether or not an employer acted reasonably and fairly in taking the decision to dismiss (for whatever reason) is a matter for an employment tribunal to decide.

Complaints arising out of a breach of contract

§ Since 12 July 1994, the jurisdiction of the employment tribunals has included all breach of employment contract cases on termination of employment – except for personal injury claims, cases (outside the tribunals' normal field of expertise) relating to intellectual property, tied accommodation, obligations of confidence, and covenants in restraint of trade. It is important to stress that the jurisdiction of the employment tribunals in these circumstances is limited to cases that arise or are outstanding on the termination of an employee's contract of employment, and not otherwise. A claim for damages arising out of an alleged breach of contract by an employer must be presented within three months of the effective date of termination of the employee's contract of employment. Counter-claims must be submitted by an employer not later than six weeks from the date on which the employer receives a copy of the employee's originating application (Form IT1) from the Secretary to the Tribunals.

§ There is an upper limit of £25,000 on the amount a tribunal may award in breach of employment contract cases. A claimant seeking higher damages should do so in the civil courts (which retain concurrent jurisdiction).

Illegal contracts

§ Any employee who enters into an illegal contract of employment may find to his (or her) cost that the contract in question will be held to be void and unenforceable by the tribunals and courts. Such an employee would be denied his common law right to sue for wrongful dismissal, and would be unable to enforce his statutory employment rights including his right to claim a redundancy payment or to present a complaint of unfair dismissal (which latter rights are dependent on the existence of a valid contract of employment and a period of continuous service under that contract).

§ What then is an illegal contract? Such a contract may include an undertaking by an employer not to deduct PAYE tax or National Insurance contributions from the employee's earnings (Napier v National Business Agency Limited [1951] 2 All ER 264). However, in Lightfoot v D & J Sporting Limited [1996] IRLR 64, it was pointed out that there is a distinction between tax evasion (which is unlawful) and tax avoidance (which is perfectly legitimate). A contract is not rendered illegal by an employee's lawful efforts to minimise his tax liabilities.

§ A contract under which an employee is hired specifically to carry out illegal or immoral acts (eg, to procure prostitutes for the entertainment of his employer's business clients) will also be unenforceable (Coral Leisure Group Limited v Barnett [1981] IRLR 204), as would a contract under which an employer recruits an illegal immigrant, in contravention of the Asylum & Immigration Act 1996, or in circumstances in which the employee does not possess a valid work permit (Sharman v Hindu Temple (1991) unreported, EAT 253/90) – although the outcome in each case will depend on its particular circumstances.

§ In the Coral case referred to in the previous paragraph, a public relations executive occasionally procured prostitutes at his employer 's behest for the entertainment of his employer's business clients. The tribunal held that, although the employee had acted unlawfully in carrying out his legitimate duties, he had not been hired for that specific purpose. His contract remained valid and enforceable and he retained the right to present a complaint of unfair dismissal. Were this not the case, an HGV driver or sales representative (in less dramatic circumstances) would run the risk of invalidating his (or her) contract of employment every time he ignored a red traffic light or exceeded the speed limit in the course of carrying out his normal duties.

§ A contract of employment entered into legally at the outset may become illegal with the passage of time. This may arise if, for example, an employer decides at some later date not to deduct tax or national insurance contributions from an employee's wages. A similar situation arose in Salveson v Simmons [1994] IRLR 52, when a farm manager illegally arranged to have part of his salary paid tax-free into a business that he owned. When the farm changed hands, the new owner refused to continue this arrangement. The farm manager resigned and presented a complaint of unfair constructive dismissal. The tribunal held the tax evasion to which he had been a party had rendered his contract void, in spite of his claim that he did not know that the arrangement had been illegal. Ignorance of the law is no excuse.

Continuous Employment, Meaning Of

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Key points

To qualify for most statutory rights in employment, an employee must be in continuous employment and must have been continuously employed for a specified period. That period is expressed in months or years - a month meaning a calendar month; and a year, a year of 12 calendar months. The rules are laid down in Part XIV, Chapter I (sections 210 to 219) of the Employment Rights Act 1996 - reproduced as the Appendix to this handbook.
Following the decision of the House of Lords in R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1994] ICR 317, and the subsequent introduction of the Employment Protection (Part-Time Employees) Regulations 1995, part-time employees are nowadays entitled to the same statutory employment rights as their full-time colleagues, and are subject to the same qualifying conditions for access to those rights. See also the section titled Part-time workers elsewhere in this handbook.

The continuity of a period of employment

Any employee who is in continuous employment will ultimately have been employed for a period sufficient to qualify for most (if not all) of the statutory rights outlined both in the Employment Rights Act 1996 and in related legislation (such as the Trade Union & Labour Relations (Consolidation) Act 1992). For example, an employee who has been continuously employed for one month up to the day preceding a workless day will qualify to be paid a guarantee payment in respect of that and (within prescribed limits) any subsequent workless days. A pregnant employee, who has been continuously employed for one year or more at the beginning of the 11th week before the expected week of childbirth, will qualify for up to 29 weeks additional maternity leave. An employee with one or more years' service at the effective date of termination of his (or her) employment has the right to pursue a complaint of unfair dismissal. An employee with two or more years' continuous service from the age of 18, has the right to be paid (or to claim) a redundancy payment; and so on.
In computing an employee's period of continuous employment, any question whether the employee's employment is of a kind counting towards a period of continuous employment or whether periods (consecutive or otherwise) are to be treated as forming a single period of continuous employment, is determined week by week.
But, where it is necessary to compute the length of an employee's period of employment in order to determine whether he (or she) qualifies for a statutory right which is dependent on a period of continuous employment, different rules apply, as is explained later in this section under the headings: When does a period of continuous employment begin? and And when does it end?

Weeks that count

Every week during the whole or part of which an employee's relations with his (or her) employer are governed by a contract of employment counts in computing that employee's period of employment (ibid. section 212(1)). It follows that the continuity of an employee's period of employment with the one employer is not broken if the employee is re- employed by that same employer (whether in the same or a different job) during the week immediately following the week in which his previous employment ended - even if the employee has worked (albeit briefly) for another employer in the days preceding his re-employment (per Sweeney v J & S Henderson (Concessions) Ltd [1999] IRLR 306 (EAT)).

Under normal circumstances a week which does not count in the computation of a period of employment breaks the continuity of that period of employment. If, for example, the employee in the previous paragraph had not been re-engaged by his former employer for a further week, the continuity of his period of employment with that employer would have been broken. However, as is explained later in this section, there are circumstances in which an interval of more than one week between two consecutive periods of employment with the same employer will nonetheless be treated as part of an employee's total period of continuous employment with that employer.

Note

The continuity of a period of employment will be broken if an otherwise legal contract is performed illegally (eg, by a fraud on the Inland Revenue) (Napier v National Business Agency Limited [1951]2 All ER 264) unless the employee was unaware, for example, that his (or her) employer had been acting unlawfully (Newland v Simons & Willer (Hairdressers) Limited [1981] ICR 521).

Weeks that do not count but do not break continuity

Any week, during the whole or part of which an employee takes part in a strike, must be discounted when computing the employee's total period of continuous employment. However, the loss of that week does not destroy the continuity of that period of employment. See also Industrial disputes below.
Weeks during the whole or part of which an employee works (or worked) outside Great Britain ordinarily count as part of that employee's total period of continuous employment, except in the case of a week (or part week) in which the employee was not an employed earner for the purposes of the Social Security Contributions & Benefits Act 1992 in respect of whom a secondary Class 1 National insurance contribution was payable under that Act (whether or not the contribution was in fact paid). In the latter situation, the week or weeks in question do not break the continuity of a period of employment but do not count as part of the employee's total period of continuous employment.

When does a period of continuous employment begin?

To determine whether an employee has been continuously employed for a period sufficient to qualify for one or other of his (or her) statutory rights under the Employment Rights Act 1996, his period of continuous employment begins with the day on which he first started work with his employer and ends with the day by reference to which the length of his period of continuous employment falls to be ascertained (but see Industrial disputes below).
This rule applies to all statutory employment rights which are dependent on a period of continuous employment, except in relation to an employee's right to a statutory redundancy payment. In the latter instance, any employee who started work with his (or her) employer before his 18th birthday is deemed to have started work on that 18th birthday (ibid. section 211(2)).

And when does it end?

A period of continuous employment will end on the effective date of termination of the employee's contract of employment. For the meaning of effective date of termination

However, continuity will be preserved if an unfairly dismissed employee is reinstated or re-engaged by his former employer (or by an associated or successor employer) at the direction of an employment tribunal.

Section 210(5) of the 1996 Act cautions that 'a person's employment during any period shall, unless the contrary is shown, be presumed to have been continuous'. This means that, when confronted with a tribunal situation, an employer must be prepared to produce evidence to support his (or her) assertion that the applicant employee (the complainant) had not been continuously employed for a period sufficient to qualify him (or her) to pursue a complaint of unfair dismissal before an employment tribunal or to lay claim to a particular statutory right (such as a redundancy payment or any other statutory right that he claims has been denied him).
To pursue a complaint before an employment tribunal concerning an alleged breach of one or other of his (or her) statutory rights, an employee must complete Form IT1 (Originating Application to an Employment Tribunal) and send it to his (or her) nearest regional (ROET) or other office (OET) of the employment tribunals explaining the nature of his (or her) complaint. Within a week or two, a copy of that form will be forwarded to the employer (as well as to ACAS) together with Form IT3, inviting him (or her) to respond to the employee's complaint. It is at this point that the employer must be prepared to refute the employee's contention that he had (or has) been continuously employed for a period sufficient to qualify him for the right he now claims has been denied him. If the employer neglects to do so (either at this stage or at the subsequent tribunal hearing), the tribunal will proceed on the assumption that the disputed period of employment was continuous.

Circumstances that do not break continuity

There are circumstances in which continuity of employment is not broken even though an employee's contract of employment has come to an end:

If an employee has been dismissed (or has resigned) on grounds of ill-health, his (or her) intervening period of absence will be treated as part of his total period of employment if, but only if, he is reinstated or re-engaged by the same employer within 26 weeks of the date on which his employment under his previous contract came to an end (the 'effective date of termination') (ibid. section 212(3)(a)).

If, on the other hand, an employee is dismissed on account of a temporary cessation of work, or in circumstances such that, by custom or arrangement, he (or she) is regarded as continuing in the employment of his employer (eg, seasonal workers), continuity of employment will be preserved if, at some later date, he is re- employed or reinstated by the same (or an associated) employer (ibid. section 212(3)(b) and (c)). Thus, if a factory is destroyed by fire and the workforce is necessarily dismissed pending rebuilding, the intervening period of interruption of employment will ordinarily count as a period of employment, notwithstanding that some or all of the workforce may have accepted work elsewhere while waiting to return to their original jobs (see Bentley Engineering Co Ltd v Crown & Miller [1976] ICR 225 when employment was interrupted in similar circumstances for 21 months and two years, respectively, without loss of continuity). See also the decision of the House of Lords in Ford v Warwickshire County Council [1983] ICR 273.

In contentious cases, it will be (as always) a matter for the tribunals and courts to determine whether a break in employment preserves the continuity of a period of employment. In Ingram v Foxon [1984] ICR 685, it was held that an agreement between an employer and a returning employee - that the interval between the latter's dismissal and subsequent re-employment would form part of the employee's total period of continuous employment - could be categorised as an 'arrangement or custom' sufficient to bind the employer to that agreement. That decision was disputed by the EAT in Morris v Walsh Western UK Limited [1997] IRLR 562 and rejected by the EAT in Collinson v British Broadcasting Corporation [1998] IRLR 238 (EAT). In short, the concept of 'continuity of employment' is a statutory concept, and not one that can be vitiated by a compromise agreement or any other form of agreement between an employer and an employee. See also Reinstatement or re-engagement below.

Special provisions for redundancy payments

The continuity of a period of employment is broken - but only for redundancy qualification and payment purposes - if an employee who has been paid a statutory redundancy payment is subsequently re- engaged by his (or her) former employer in circumstances which do not otherwise destroy continuity. This means that, although continuity is preserved for all other purposes - qualifying periods for unfair dismissal, additional maternity leave, notice, etc - the re-engaged employee will not again qualify for a redundancy payment until such time as he again satisfies the prescribed qualifying conditions for such a payment (in terms of length of service and age) (ibid. section 214).

Note
In Rowan v Machinery Installations (South Wales) Limited [1981] ICR 386, and again in Ross v Delrosa Caterers Limited [1981] ICR 393, it was held that section 214 of the 1996 Act applies to a statutory redundancy payment (as defined in section 162 of the 1996 Act). It does not apply to a severance or other form of 'redundancy payment' which an employer is not legally required to make.

The same rule applies when an employee, who has previously been paid a statutory redundancy payment, is reinstated or re-employed by his employer (or by a successor or associated employer):

following the intervention of an ACAS conciliation officer (and the conclusion of a COT 3 agreement); or

as the result of a relevant compromise agreement; or

as the result of an 'arbitral agreement' delivered by an independent arbitrator under the ACAS Arbitration Scheme; or

in compliance with a tribunal order for reinstatement or re-engagement (see below).

However, continuity will be preserved for all purposes (including entitlement to a statutory redundancy payment) if the terms on which the employee is reinstated or re-engaged include a provision that the employee repay the amount of any statutory redundancy payment previously paid to him (or her) - so long as the employee complies with that provision (ibid. section 219 as modified by the Employment Protection (Continuity of Employment) Regulations 1996).

Industrial disputes

The continuity of a period of employment is not destroyed when an employee takes part in a strike (or is absent from work because of a lock-out). However, the number (or aggregate number) of days lost through strike action (or a lock-out) must be discounted when computing an employee's total period of continuous employment for the purpose of establishing his or her right (or otherwise) to one or other of the statutory employment rights listed in the 1996 Act. The date on which the employee's period of employment actually began must then be treated as postponed by the number of days in question (ibid. sections 211(3) and 216).

For example, unless dismissed for an inadmissible or unlawful reason, an employee will not qualify to present a complaint of unfair dismissal to an employment tribunal if he (or she) had not been continuously employed for one calendar year or more at the effective date of termination of his contract of employment. When calculating an employee's period of continuous employment for this purpose (perhaps in response to a Form IT3), the respondent employer will first need to establish the number of days (if any) during which the employee took part in a strike or was absent from work because of a 'lock-out' - counting the number of days (in each case) between the last working day between the day on which each strike or lock-out began and the day on which the employee returned to work. If these add up to, say, five days, the employer must then treat the date on which the employee first started work as postponed by that same number of days. If the employee in question started work on 3 May 1999, he will be treated for these purposes as having started work on 8 May 1999. If his employment ended on 5 May 2000, he will not have completed the necessary one calendar year's service and will have forfeited his right to challenge the fairness of his dismissal before an employment tribunal.

Reinstatement or re-engagement

If an employer (or a successor or associated employer) complies with a tribunal or court order to reinstate or re-engage an unfairly dismissed employee, the period of the employee's absence from work (ie, from the time his (or her) employment ended to the date on which he was reinstated or re-engaged) will count as part of his total period of continuous employment (ibid. section 219 and regulation 3 of the Employment Protection (Continuity of Employment) Regulations 1996 (qv)).

In a situation involving an unfair redundancy dismissal, the continuity of employment, otherwise broken for redundancy qualification and payments purposes, will be re-established for those and all other purposes if the terms on which the employee is to be reinstated or re- engaged include a provision that the employee repay the amount of any statutory redundancy payment paid to him (or her) by his employer at the time of his dismissal, so long as the employee complies with that provision (ibid. sections 214 and 219, and regulation 4 of the Employment Protection (Continuity of Employment) Regulations 1996 (qv)). See also Special provisions for redundancy payments earlier in this section.

Continuity and a change of employer

A change of employer does not break the continuity of a period of employment if the employer's business is acquired by, or transferred to, another owner or employer; or if the employer dies and his personal representatives or trustees continue to run the business; or if there is a change in the partners, personal representatives or trustees; or if the employee transfers from one employer to another when, at the time of the transfer, the two employers are associated employers (ibid. section 218).

Two employers will be treated as associated 'if one is a company of which the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control; and associated employer shall be construed accordingly' (section 231, Employment Rights Act 1996). A successor employer in relation to an employee, means a person who, in consequence of a change occurring (whether by virtue of a sale or other disposition or by operation of law) in the ownership of the undertaking, or of part of the undertaking, for the purposes of which the employee was employed, has become owner of the undertaking or part (ibid. section 235(1)).

Transfer of undertakings

Under the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 1981, as amended, an employee's contractual rights are safeguarded when the company (organisation or business) for which he (or she) works is sold or transferred as a going concern to another employer. This means that the new owner inherits the contracts of employment of the persons employed by the former owner immediately before the transfer or sale took place. He (or she) cannot pick or choose which employees to take over. They all go with the business - unless an employee makes it known, either to his existing employer or to the new owner, that he objects to becoming employed by the new owner. If this happens, there is no dismissal in law and the employee has no grounds for pursuing a complaint of unfair dismissal against either his former employer or the new owner of the business (ibid. regulations 5(4A) and (4B)).

If the original employer dismisses one or more of his (or her) employees simply because he has sold (or is in the process of selling or transferring) his business (or in order to strike a better deal with the prospective purchaser), that employee will be treated in law as having been unfairly dismissed - unless the employer can show that the dismissal was for 'an economic, technical or organisational [ETO] reason entailing changes in the workforce'. The same applies if the new owner or employer sets about dismissing one or other of the employees he has inherited, unless he too can justify the dismissals in ETO terms. However, an employee dismissed in these circumstances will not qualify to pursue a complaint of unfair dismissal unless he (or she) had been continuously employed for one year or more at the effective date of termination of his contract of employment (ibid. regulations 5 and 8).

It follows that the transfer or sale of an undertaking (company/partnership, business firm, or franchise) does not break the continuity of employment of the persons employed in that undertaking before the transfer or sale occurred. Indeed, section 4 of the 1996 Act imposes a duty on the new employer to issue a written statement to each of those employees giving his or her name (ie, the name of the employing organisation) and the date on which the employee's period of continuous employment began ('taking into account any employment with a previous employer which counts towards that period'). That written statement must be issued 'at the earliest opportunity and, in any event, not later than one month after the change' to which it refers.

Conciliation Officers

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Key points

The role of the Advisory, Conciliation & Arbitration Service (ACAS) is to provide an independent and impartial service to prevent and resolve disputes between employers and employees. Conciliation officers appointed by ACAS have a statutory duty to promote settlements of complaints arising out of a breach (or alleged breach) of an employee's rights under contemporary employment and industrial relations legislation which are or could be the subject of proceedings before the employment tribunals (per Part IV, Chapter IV of the Trade Union & Labour Relations (Consolidation) Act 1992 and sections 18 and 19 of the Employment Tribunals Act 1996).

If there is a dispute between an employer and an employee concerning an alleged infringement of one or other of the employee's statutory rights (including his or her right not to be unfairly dismissed), either party to that dispute may request a conciliation officer to make his (or her) services available to them. It is a conciliation officer 's duty to endeavour to promote a settlement - before the employee decides to take the matter further by presenting a complaint to an employment tribunal (section 18(2), Employment Tribunals Act 1996). If an employee has already complained to an employment tribunal, a copy of his (or her) 'originating application' (Form ITI) plus a copy of his employer's (or former employer's) response (Form IT3) to that application, will be sent automatically to the appropriate regional office of ACAS. A conciliation officer will then contact both parties offering to help settle the 'dispute' between them. However, he cannot proceed further unless both parties accept that offer of help. But see Future developments at the end of this section.

It is not the function of conciliation officers to comment on the merits or otherwise of an employee's complaint (or to attempt to persuade an employee to withdraw that complaint). Their role is to help the parties establish the facts and clarify their views, without allowing their own views to intrude. In short, a conciliation officer is neither an arbitrator nor an investigator. Nor is anything said to a conciliation officer in the course of discussions admissible as evidence in proceedings before an employment tribunal.

COT 3 agreements

If a conciliation officer succeeds in promoting an 'out-of-court' settlement, details of the settlement will be recorded on form COT 3 (signed by both parties). Once this is done, the employee cannot then change his (or her) mind and press ahead with the original complaint (see Moore v Dupont Furniture Products Limited [1980] IRLR 158 (CA)). Each party keeps a copy of form COT 3. A third copy is sent to the Central Office of the Employment Tribunals which will register the complaint as having been settled by conciliation. Another (relatively new) form of binding agreement reached without the intervention of a conciliation officer - is the so-called 'compromise agreement' (discussed in the previous section).

General

If an employer fails to honour the terms of a COT 3 settlement, the employee may apply to the county court for an order enforcing compliance.

If an out-of-court settlement is reached without the intervention of a conciliation officer (and there has been no 'compromise agreement'), the employee is free to change his (or her) mind and can insist on having his complaint heard by an employment tribunal - regardless of how the settlement was framed.

Nothing communicated to a conciliation officer during his (or her) attempts to promote a settlement is admissible in evidence before an employment tribunal - unless the party concerned gives his express consent.

Complaints of unfair dismissal

If an employee has presented a complaint of unfair dismissal to an employment tribunal, the conciliation officer's first duty is to explore the possibility of reinstatement or re-engagement. If this is impracticable or unacceptable (usually because the relationship between the parties has soured), he (or she) will invite the parties to consider the question of compensation. Although conciliation officers are free to explain the formulae used by employment tribunals to calculate awards of compensation for unfair dismissal, it is not their function to recommend an appropriate amount.

Note
A conciliation officer will intervene on a complaint of unfair dismissal if satisfied either that a dismissal (including an alleged 'constructive' dismissal) has actually occurred or that the employee has either been dismissed or has resigned but is still serving out his (or her) notice period.

Dismissal for asserting a statutory right

A conciliation officer may also intervene when an employee claims that he (or she) was dismissed for having challenged his employer 's infringement of one or other of his statutory employment rights or for having referred the alleged infringement to an employment tribunal (section 104, Employment Rights Act 1996).

At the request of both parties (if a complaint has already been presented) or of either party (if there has not yet been a formal complaint), a conciliation officer is duty-bound to try to settle such a dispute before it proceeds to a full tribunal hearing. A conciliation officer will not take the initiative in such cases unless he (or she) believes that he has a reasonable prospect of success.

Note
The Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994 and the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 were made by the Lord Chancellor and the Lord Advocate, respectively, under the then section 131 of the Employment Protection (Consolidation) Act 1978 (now section 3 of the Employment Tribunals Act 1996). The orders, which came into force on 12 July 1994, enable the employment tribunals to hear all breach of employment contract disputes that arise (or remain unresolved) at the end of an employee's period of employment - except for claims relating to personal injury, intellectual property, tied accommodation, obligations of confidence, and covenant e, which latter remain outside the tribunals' jurisdiction.

Future developments

As is pointed out in the Explanatory Notes accompanying the Employment Act 2002, the duty of ACAS (through its conciliation officers) is to continue to seek a conciliated settlement between an employer and an employee for so long as the two parties to the dispute want to carry on. This can sometimes lead to an ACAS-brokered agreement being reached at the very last moment - before an employee's complaint comes before an employment tribunal - 'the result', say the Notes, of the parties being unwilling to focus on the importance of agreement until the reality of the tribunal hearing is upon them. But delayed settlements 'cost time and resource to the parties involved, to ACAS, and to the tribunal services. The objective, therefore, is to introduce a system that encourages earlier conciliated settlement where this is possible, without preventing last minute settlements if there is good reason for them'.

To that end, section 24 of the 2002 Act establishes a fixed period of conciliation for claims to an employment tribunal. Once section 24 is brought into force (possibly in the second half of 2003), section 7 of the Employment Tribunals Act 1996 will be amended by regulations to enable the postponment of the fixing of a time and place for a tribunal hearing in order for the proceedings to be settled through conciliation. Regulations will set out the length of the conciliation period and will provide for its extension only in cases where the conciliation officer considers that settlement within a short additional time frame is very likely. Once the conciliation period is over, it will be for a conciliation officer (and he or she alone) to judge whether to continue to conciliate the case or to pass it back to the Employment Tribunal Service so that a time and place can be fixed for a hearing.

Commission for Racial Equality

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Key points

The Commission for Racial Equality (CRE) which replaced the former Race Relations Board and the Community Relations Commission, was established by section 43 of the Race Relations Act 1976. The CRE has at least eight (but not more than 15) Commissioners, including a chairman and one or more deputy chairmen, all appointed on a full-time or part-time basis by the Secretary of State for Employment.

The duties of the CRE are to work towards the elimination of racial discrimination and to promote equality of opportunity and good relations between different racial groups. It monitors observance of the 1976 Act and is empowered to conduct investigations, serve non- discrimination notices, and to apply to the court for an injunction or order against persistent offenders. The CRE may also issue codes of practice containing practical guidance on methods for the elimination of discrimination in the field of employment.

Power of the CRE to obtain information

The CRE may order an employer to furnish written information about his employment policies and practices or serve notice on him to appear before the Commission at a specified time and place (bringing with him any and all documents relating to the matters specified in the notice). If an employer refuses or fails to cooperate, the CRE may apply to a county court (or, in Scotland, the sheriff court) for an order directing him to comply. If an employer wilfully alters, suppresses, conceals or destroys any document that he has been ordered to produce, or knowingly or recklessly makes any statement that is false in a material particular, he is guilty of an offence and liable on summary conviction to a fine of up to £5,000.

Non-Discrimination Notices

If, in the course of a formal investigation, the CRE are satisfied that an employer is committing (or has committed) an unlawful discriminatory act, they may serve on him a 'Non-Discrimination Notice' ordering him to comply with the law and cautioning him that, if there is any repetition during the next five years, the matter will be placed in the hands of the county (or sheriff) court.

The CRE will not normally serve a Non-Discrimination Notice on an employer without first warning him of the possibility (and the legal implications) and giving him 28 days within which to put his side of the story (orally or in writing). An employer has six weeks within which to appeal to an employment tribunal (or, where appropriate, to a designated county or a sheriff court) against any requirement of a Non- Discrimination Notice on the ground either that it is unreasonable (because it is based on an incorrect finding of fact) or for any other reason. In the event, the court will either confirm or quash the requirement or substitute a new requirement.

Help for persons suffering racial discrimination

An employee (or job applicant) who has already registered a complaint of unlawful racial discrimination with an employment tribunal (or who is contemplating doing so) may apply to the CRE for help and advice. The CRE will usually agree to help if the case is unduly complex or raises a question of principle, or if there are any other special considerations. Their help may include procuring (or attempting to procure) an out-of-court settlement (eg, by a direct approach to the employer in question); arranging for the giving of advice by a solicitor or counsel; or, in the final analysis, seeing to it that the employee is adequately represented at the tribunal hearing.

Collective Agreements

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Key points

A collective agreement (as defined by section 178 of the Trade Union & Labour Relations (Consolidation) Act 1992) is an agreement or arrangement between one or more employers (or employers' associations) and one or more trade unions dealing with one or other of the following matters:

'terms and conditions of employment, or the physical conditions in which any workers are required to work;

engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;

allocation of work or the duties of employment between workers or groups of workers;

matters of discipline;

a worker's membership or non-membership of a trade union;

facilities for officials of trade unions; and

machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers' associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures.'

Note
Any term in a collective agreement which purports to discriminate against women (or men) is void and unenforceable (per section 6, Sex Discrimination Act 1986, as amended by the Trade Union Reform & Employment Rights Act 1993).

Is a collective agreement legally binding?

A collective agreement will be conclusively presumed not to be legally enforceable unless it is in writing; and contains a provision that (however expressed) states that the parties intend it to be legally enforceable.

A collective agreement will be enforceable in a court of law if, but only if, it satisfies both of those conditions. The same applies if there is a provision in a collective agreement that specifies that one or more parts of that agreement (but not the whole agreement) are intended by the parties to be legally enforceable (ibid. section 179).

As a collective agreement often deals with matters such as rates of pay, entitlement to holidays, disciplinary rules and procedures, etc, those provisions will usually be incorporated in the contracts of employment of the employees covered by the agreement and will (if need be) be enforced by the tribunals and courts. Indeed, the written particulars of employment required to be issued to employees when they first start work must specify any collective agreement that directly affects their terms and conditions of employment. If the employer was not himself a party to that agreement, the written statement must identify the persons by whom the agreement was made (section 1(4)(j), Employment Rights Act 1996). For further details, see Written particulars of terms of employment elsewhere in this handbook.

'No strike' clauses

If there are any terms in a collective agreement that purport to prohibit or restrict the right of workers to take part in a strike or other form of industrial action (or have the effect of prohibiting or restricting that right), those terms will not form part of an employee's contract of employment unless the collective agreement itself:

is in writing;

contains a provision expressly stating that those terms shall (or may be) incorporated in such a contract;

is reasonably accessible at his place of work to the worker to whom it applies and is available for him to consult during working hours;

is one where each trade union that is a party to the agreement is an independent trade union; and

provided also that the contract between the worker and the person for whom he works expressly or impliedly incorporates those terms (section 180, Trade Union & Labour Relations (Consolidation) Act 1992).

Note
An independent trade union is a trade union that (a) is not under the domination or control of an employer or group of employers (or of one or more employers' associations) and (b) is not liable to interference by an employer or any such group or association (arising out of the provision of financial support or material support or by any other means whatsoever) tending towards such control; and references to independence shall be construed accordingly (ibid. section 5).

Dismissal procedures agreement

A 'dismissal procedures agreement' (as defined in section 235 of the Employment Rights Act 1996) is an agreement (in writing) between an employer and a trade union, the effect (or intended effect) of (or of one or more which is to substitute for the statutory right of an employee to complain of unfair dismissal to an employment tribunal. A dismissal procedures agreement may be a separate agreement or it may form part of a collective agreement. Either way, it will not be legally binding unless specifically 'designated' as such by order of the Secretary of State for Employment. Nor will the Secretary of State make an order designating such an agreement as having effect in substitution for the unfair dismissal provisions of the 1996 Act unless it satisfies all of following conditions prescribed by section 110 of that Act:

Every trade union party to the agreement must be an independent trade union.

The procedures laid down in the agreement for determining the fairness or otherwise of a dismissal (or intended dismissal) must be accessible without discrimination to all employees falling within any description to which the agreement relates.

The remedies provided by the agreement in respect of unfair dismissal must, on the whole, be as beneficial as (but not necessarily identical to) those available to the employment tribunals under Chapter II of Part X of the 1996 Act.

The agreement must include provision either for arbitration in every case or for:

arbitration where (by reason of an equality of votes or for any other reason) a decision under the agreement cannot otherwise be reached; and

a right to submit to arbitration any question of law arising out of such a decision.

The provisions of the agreement must be such that it can be determined with reasonable certainty whether a particular employee is one to whom the agreement applies or not (ibid. section 110(3)).

But, if the agreement states that it does not apply to particular descriptions of dismissals (eg, the right of an employee under section 99 of the 1996 Act not to be dismissed (or selected for redundancy) on grounds of pregnancy or childbirth (or for a connected reason), the agreement will not operate in relation to a dismissal of any such description (ibid. section 110(2), as substituted by section 12 of the Employment Rights (Dispute Resolution) Act 1998).

An award made under a designated dismissal procedures agreement may be enforced (in England and Wales) by leave of the county court, in the same manner as a county court judgment to the same effect is enforced. In Scotland, such an award may be recorded for execution in the Books of Council and Session, and will be enforceable accordingly (ibid. section 110(6), inserted by section 13(3) of the Employment Rights (Dispute Resolution) Act 1998).

Section 110(4) of the 1996 Act points out that one or other of the parties to a designated dismissal procedures agreement may apply to the Secretary of State for Employment for an order revoking an order made under section 110(3). The Secretary of State will revoke the order if all parties are agreed or if satisfied that the agreement no longer satisfies all of conditions 1 to 5 above.

Collective agreements and TUPE transfers

If there is a collective agreement in force when a business or undertaking is sold or otherwise disposed of, the organisation that purchases or acquires that business inherits that agreement (and all of the seller's obligations under that agreement) in the same way as it inherits the contracts of employment of the persons employed in that business and covered by the provisions of that agreement (regulation 6, Transfer of Undertakings (Protection of Employment) Regulations 1981).

Furthermore, if the person selling or transferring his (or her) business recognises an independent trade union as having bargaining rights in respect of some or all of his employees, the new owner must likewise recognise that same trade union in respect of those same employees - although there is nothing to prevent him varying or rescinding that agreement at a later date. However, this rule does not apply unless the business (or part of the business sold) maintains an identity distinct from the remainder of the purchaser 's business. If the new owner simply absorbs the business, or merges it with his existing business, the recognition agreement no longer applies (ibid. regulation 9). See also Continuous employment elsewhere in this handbook.

Collective agreements: detriment and dismissal

Section 17 of the Employment Relations Act 1996 empowers the Secretary of State to make regulations about cases where a worker is either dismissed or subjected to detriment by his (or her) employer for refusing to enter into a contract which includes terms which differ from the terms of a collective agreement which applies to that worker. At the time of writing, section 17 had not as yet been brought into force.

Working Time Regulations 1998

Regulation 23 of the Working Time Regulations 1998 (as amended) allows that a collective agreement may (in relation to particular workers or groups of workers) modify or exclude those provisions in the regulations which relate to daily and weekly rest periods and in- work rest breaks - but only for adult workers (that is to say, workers aged 18 and over) - so long as the agreement clearly allows those workers to take equivalent periods of compensatory rest (ibid. regulations 23 and 24).

Save for young workers under the age of 18, the night work limits imposed by the 1998 Regulations may also be excluded or modified (for all workers, including adolescents) by a collective agreement - so long as an adult worker's average weekly hours (including hours worked at night) do not exceed 48 during the agreed reference period, which latter may be extended (for objective or technical reasons associated with the organisation of work) from 17 to 52 weeks. However, any term in a collective (or workforce) agreement that presumes to override a worker's right not to work more than an average 48 hours a week is void and unenforceable.

Finally, a worker's entitlement to a minimum four weeks' paid annual holidays is also sacrosanct - although a collective agreement may determine when the holiday year begins and ends, the procedures to be followed by workers before taking their holidays, and the method to be used to calculate a worker's residual entitlement to holiday on the termination of his (or her) employment. It may also contain a provision allowing a worker who has resigned or been dismissed to compensate his (or her) employer for holidays taken in excess of his statutory entitlement - whether by a payment, by undertaking additional work, or otherwise (ibid. regulation 14(4)).

Other legislation

Information about the role and validity of collective (or workforce) agreements in the context of the rights of fixed-term employees under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, is to be found elsewhere in this handbook in the section titled Fixed-term employees.

Codes of Practice

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Key points

An 'approved' code of practice is a document (approved, in most instances, by Parliament) that contains practical guidance on the law. In the context of employment law, a code of practice interprets the duties and responsibilities of employers and the rights of employees under this or that statute and/or its associated regulations and orders.

Legal status of a code of practice

A failure on the part of any person (employer, trade union official, or employee) to observe any provision of an approved Code of Practice does not of itself render him (or her) liable to proceedings before a court or tribunal. But in such proceedings, that failure is admissible in evidence and, if any provision of the code appears to the court or tribunal to be relevant to any question arising in the proceedings, it shall be taken into account in deciding that question.

In other words, the codes of practice referred to in this section have much the same status as has the Highway Code in respect of breaches of road traffic legislation. A motorist will not be prosecuted for a breach of the Highway Code. But, if he is prosecuted for an alleged offence under the Road Traffic Acts, his failure to observe any relevant provisions of the Highway Code will be admissible in evidence in proceedings before the magistrates' court.

Who issues codes of practice?

In the employment arena, codes of practice may be issued by:

the Advisory, Conciliation & Arbitration Service (ACAS) - to promote the improvement of industrial relations (per sections 199 to 202, Trade Union & Labour Relations (Consolidation) Act 1992);

the Secretary of State for Trade & Industry - 'for the purpose (a) of promoting the improvement of industrial relations, or (b) of promoting what appear to him to be desirable practices in relation to the conduct by trade unions of ballots and elections' (ibid. sections 203 to 206);

the Disability Rights Commission - on how to avoid discrimination or with a view to promoting the equalisation of opportunities for disabled persons and persons who have a disability, or encouraging good practice regarding the treatment of such persons (per section 53A, Disability Rights Commission Act 1999);

the Equal Opportunities Commission (EOC) - (a) for the elimination of discrimination in the field of employment; and/or (b) the promotion of equality of opportunity in that field between men and women (per section 56A, Sex Discrimination Act 1975);

the Commission for Racial Equality - 'for either or both of the following purposes: (a) the elimination of discrimination in the field of employment; (b) the promotion of equality of opportunity in that field between persons of different racial groups' (per section 47, Race Relations Act 1976); and

the Health & Safety Commission (HSC) - 'for the purposes of providing practical guidance with respect to the provisions of sections 2 to 7 of the Health & Safety at Work etc Act 1974 or of health and safety regulations or of any of the existing statutory provisions' (ibid. section 16).

A code of practice requires prior consultation with interested parties, the consent of the Secretary of State and approval (in all but one instance) by resolution of both Houses of Parliament.

Under the Asylum & Immigration Act 1996 (as amended by section 22 of the Immigration & Asylum Act 1999):

the Secretary of State must issue a code of practice as to the measures which an employer is to be expected to take, or not to take, in order to avoid unlawful discrimination on grounds of race when establishing (as every employer is duty-bound to do) whether a job applicant 'subject to immigration control' has the legal right either to enter (or remain) in the UK or to take up employment while in the UK.

In preparing a draft of the code, the Home Secretary must consult the Commission for Racial Equality (CRE) or (in Northern Ireland) the Equality Commission for Northern Ireland, and such organisations and bodies as he (or she) considers appropriate. The draft will then be laid before both Houses of Parliament, after which the Secretary of State may bring the code into operation by an order made by statutory instrument (ibid. sections 8 and 8A).

Advisory, Conciliation & Arbitration Service (ACAS)

When proposing to issue a code of practice (or a revised code), ACAS must first prepare and publish a draft of the code. It must then consider any representations made to it about the draft and may modify the draft accordingly. It must then transmit the draft to the Secretary of State for Employment who, if he approves of it, will lay it before both Houses of Parliament for approval by resolution.

To date, ACAS has issued three approved codes of practice. These are:

COP 1: Disciplinary & Grievance Procedures (2000)

COP 2: Discosure of information to trade unions for collective bargaining purposes (1998)

COP 3: Time off for trade union duties & activities (1998)

copies of which are available from: ACAS Reader Limited, PO Box 16, Earl Shilton, Leicester LE9 8ZZ (Telephone: 0870 242 9090).

Department of Trade & Industry

If the Secretary of State for Trade & Industry proposes to issue a code of practice (or a revised code), he must first consult with ACAS, then publish a draft of the code and, after considering any representations by interested bodies (that may prompt him to modify the draft), lay it before both Houses of Parliament for their approval by resolution. Once approved, the code comes into effect on 'such day as the Secretary of State may by order appoint'.

To date, three approved codes have been published. These are:

Code of Practice: Picketing (1992);

Code of Practice: Industrial action ballots and notice to employers (2000)

Code of Practice: Access to workers during recognition and derecognition ballots (2000)

These are available from: DTI Publications Order Line, Admail 528, London SW1W 8YT (Telephone: 0870 1502 500) (email: publications@dti.gsi.gov.uk).

For further particulars, please turn to Picketing, strikes and other industrial action and Trade union recognition elsewhere in this handbook.

Equal Opportunities Commission (EOC), Commission for Racial Equality (CRE) and Disability Rights Commission (DRC)

When proposing to issue a code of practice, the EOC, the CRE and the DRC must follow a procedure similar to that prescribed for ACAS. However, the Sex Discrimination, Race Relations and Disability Discrimination Acts specifically caution those bodies to first consult with organisations or associations representative of employers or of workers, and with 'such other organisations or bodies as appear to the Commission to be appropriate'. There are currently five codes of practice in force. These are:

Code of Practice on sex discrimination, equal opportunties policies, procedures and practices in employment (1985)

Code of Practice on equal pay (1997) (available, together with the code above, from: Marketing & Communications Department, Equal Opportunities Commission, Overseas House, Quay Street, Manchester M3 3HN)

Code of Practice for the elimination of racial discrimination and the promotion of equal opportunity in employment (available from: Commission for Racial Equality, Elliot House, 10-12 Arlington Street, London SW1E 5EH (Telephone: 020 7828 7022))

Code of Practice for the elimination of discrimination in the field of employment against disabled persons or persons who have had a disability (1996)

Code of practice on the duties of trade organisations to their disabled members and applicants (1999)

Health & Safety Commission

As might have been expected, the Health & Safety Commission has produced a considerable number of codes of practice on health and safety issues. Of immediate relevance are:

Code of Practice: Safety Representatives and Safety Committees (1978)

Code of Practice: Time off for the training of safety representatives (1978)

copies of which are available from HSE Books, PO Box 1999, Sudbury, Suffolk CO10 6FS (Tel: 01787 881165, Fax: 01787 313995, and email: www.hsebooks,gov.uk).

Closed Shop

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Key points

Meaning of 'closed shop'

In simple terms, a closed shop (or union membership agreement) is an understanding or agreement between an employer and one or more trade unions whereby the employer agrees not to employ (or to continue to employ) any person who is not a member of one or other of the trade unions party to that agreement.

Protection of job applicants and existing employees

Nowadays, the closed shop is a legal irrelevancy. It can no longer be used as an excuse for denying a person a job or for dismissing (or disciplining) a person who refuses to be or remain a member of a trade union (even if the union in question is recognised by the employer as having bargaining rights in respect of a particular class or group of employees). Furthermore, an employer cannot lawfully demand a payment from a non-union employee (or presume to make a deduction from that employee's wages or salary) as an alternative to the payment of trade union dues. In short, an individual has the absolute right to decide whether or not he or she wishes to join (or remain a member of) a trade union. Any employer who undermines that right (or bows to trade union pressure to dismiss or victimise an employee who refuses to 'fall into line'), will be liable to pay very heavy compensation indeed. For further particulars, please turn to the sections titled Dismissal and Dismissal on grounds of trade union membership elsewhere in this handbook.

It is also unlawful for an employer to refuse to interview or employ a job applicant who is not a member of a trade union (or of a particular trade union) or who has made it clear that he (or she) has no intention of joining a particular trade union or any trade union. A job applicant may complain to an employment tribunal if he (or she) suspects that he has been denied a job (or a job interview) for one or other of those reasons. The complaint must be presented within three months of the alleged unlawful act. If the complaint is upheld, the tribunal will order the employer to pay up to £53,500 by way of compensation (section 137 and 140, Trade Union & Labour Relations (Consolidation) Act 1992).

A person will be taken to have been refused employment because of his (or her) non-membership of a trade union (or because of his refusal to join a trade union) if an employer offers him a job on terms that no reasonable employer who wished to fill the post would offer.

Children, Employment Of

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Key points

A child is a person who is not over 'compulsory school age'. In England and Wales a child who turns 16 during a school year cannot lawfully leave school until the last Friday in June. A child who turns 16 after that last Friday in June, but before the beginning of the next school year, may likewise lawfully leave school on that last Friday in June. In Scotland, a child who turns 16 during the period from 1 March to 30 September, inclusive, may leave school on 31 May of that same year. Children whose 16th birthdays occur outside that period must remain at school until the first day of the Christmas holidays.

These provisions are currently to be found in section 8 of the Education Act 1996, supported by the Education (School Leaving Date) Order 1997, and (for Scotland) in section 31 of the Education (Scotland) Act 1980.

Given the many restrictions on the employment of school-age children, employers (or would-be employers) who have doubts about the true age of young-ish employees and job applicants would be wise to contact their local education authorities for further particulars. Alternatively, they should insist on the production of a birth certificate or (as is their right and on payment of a small fee) apply to the registrar or superintendent registrar of births, deaths and marriages for a certified copy of that birth certificate; as to which, see Birth certificates elsewhere in this handbook.

Legal restrictions on the employment of children

Statues and Regulations prohibiting or restricting the employment of children in prescribed circumstances include:

Employment of Women, Young Persons & Children Act 1920 (as amended);

Children & Young Persons Act 1933 (as amended);

Children & Young Persons (Scotland) Act 1937 (as amended);

Children & Young Persons Act 1963 (as amended);

Children (Performances) Regulations 1968;

Employment of Children Act 1973;

Education (Work Experience) Act 1973 (as amended); and

The Children (Protection at Work) Regulations 1998, implementing EC Council Directive 94/33/EC on the protection of young people at work.

Prohibitions on the employment of young persons (which expression includes children) in certain hazardous occupations are discussed elsewhere in this handbook in the section titled Women & young persons, employment of.

Children & Young Persons Acts 1933 & 1937

The Children & Young Persons Acts 1933 & 1937 (as amended by the Children (Protection at Work) Regulations 1997 (qv) state that no child shall be employed:

so long as he (or she) is under the age of fourteen years; or

to do any work other than light work (see below); or

before the close of school hours on any day on which he (or she) is required to attend school; or

before seven o'clock in the morning or after seven o'clock in the evening on any day; or

for more than two hours on any day on which he (or she) is required to attend school; or

for more than two hours on any Sunday; or

for more than eight hours or, if he (or she) is under the age of 15, for more than five hours on any day (other than a Sunday) on which he is not required to attend school; or

for more than 35 hours or, if under the age of 15, for more than 25 hours in any week in which he (or she) is not required to attend school; or

for more than four hours in any day without a rest break of one hour; or

at any time in a year unless, at that time, he (or she) has had, or could still have, during school holidays, at least two consecutive weeks without employment.

The expression 'light work' means work of a kind that is unlikely to affect the safety, health or development of a school age child or to interfere with the child's education or regular and punctual attendance at school.

Within seven days of employing a school age child, employers must apply to the local education authority (on a form supplied by the authority) for an Employment Certificate. The application form will seek a brief explanation of the type of employment in question and will ask for information about daily working hours, intervals for meals and rest, and so on. A copy of the Certificate approving the employment in question will be sent, as a matter of routine, to the child's Head Teacher. The consent of the child's parents or guardian will also be required (see also Information to parents below). Before applying for an Employment Certificate, employers should make it their business to obtain a copy of the local authority's byelaws on the employment of children (although these will often be provided automatically when the application form is sent or delivered to the employer).

Local authority byelaws may distinguish between children of different ages and sexes and between different localities, trades, occupations, and circumstances. They may prohibit absolutely the employment of children in specified occupations, and may (notwithstanding the general prohibition on the employment of children under the age of 14) contain provisions authorising the employment by the parents or guardians of children under 14 in light agricultural or horticultural work. Such byelaws may also authorise the employment of children aged 13 years in certain categories of light work and may allow children under 14 to work for up to an hour before the start of school on any day in which they are required to attend school.

Note
Under the Employment of Children Act 1973, the power of local authorities (or, in Scotland, education authorities) to make byelaws regulating the employment of children is replaced by a power of the Secretary of State for Employment to make cognate regulations. To date, the Secretary of State has not exercised that power.

Other prohibited occupations

Many local authorities prohibit the employment of children in the following occupations:

in the kitchen of any hotel, cook shop, fried fish shop, restaurant, snack bar or cafeteria;

as a marker or attendant in any billiards or pools saloon, licensed gaming house or registered club;

in, or in connection with, the sale of alcohol, except where alcohol is sold exclusively in sealed containers;

in collecting or sorting rags, scrap metal or refuse;

as a fairground attendant or assistant;

in any slaughterhouse;

in, or in connection with, any racecourse or race-track, or other place where any like sport is carried on;

in any heavy agricultural work;

in, or in connection with, the sale of paraffin, turpentine, white spirit, methylated spirit or petroleum spirit;

touting or selling from door to door; or

as a window cleaner.

As was indicated earlier, copies of local authority byelaws (including applications for a permit to employ a child) are available on request from the relevant local authority for the district in which the would-be employer conducts his or her business.

Industrial undertakings

Section 1(1) of the Employment of Women, Young Persons & Children Act 1920 prohibits the employment of any child in an 'industrial undertaking', which includes particularly:

mines and quarries;

industries in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, adapted for sale, broken up or demolished, or in which materials are transformed;

construction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, harbour, dock, pier, canal, inland waterway, road, tunnel, bridge, viaduct, sewer, drain, well, gaswork, waterwork or other work of construction, including the preparation for or laying the foundations of any such work or structure;

transport of passengers or goods by road, rail or inland waterway, including the handling of goods at docks, quays, wharves and warehouses, but excluding transport by hand.

The 1920 Act cautions that the relevant local authority (in Scotland, the education authority) must be consulted if the employer is in any doubt about the lines or divisions between industry, commerce and agriculture.

Information to parents

Before employing a child, a would-be employer must not only obtain the consent of one or other of the child's parents or guardians, but must also provide that parent or guardian with relevant and comprehensible information about any health and safety risks associated with the job in question. That information must include particulars about the preventive and protective measures the employer proposes to adopt (or has already put in place) to eliminate or minimise those risks (regulation 10(2), Management of Health & Safety at Work Regulations 1999).

Work experience

Under the Education (Work Experience) Act 1973, the restrictions otherwise imposed on the employment of school age children (in relation to working hours and periods of employment) do not apply during their last academic year at school (the GCSE year) if the employment in question is part of a local authority-approved work experience programme. The 1973 Act does not, however, permit the employment of such children in work otherwise prohibited by statute or local authority byelaws.

Public performances

Under the Children (Performances) Regulations 1968, a school age child may take part in a public performance (stage work, television broadcasts, etc) in prescribed circumstances, subject to the issue of a licence by the relevant local authority or a Justice of the Peace. Would- be employers or agents in such circumstances should enquire of the local authority for the area in which the child attends school.

Offences and penalties

If a child is employed in contravention of any of the statutes or byelaws discussed above, the employer (or, as appropriate, the parent or guardian) will be guilty of an offence and liable, on summary conviction, to a fine of up to £200, rising to £500 if convicted on a second or subsequent occasion. The penalty for an offence under health and safety legislation restricting or prohibiting the employment of children in certain occupations is a fine of up to £2,000 or a fine of an unlimited amount if a conviction is obtained on indictment. If the offence constitutes a failure on the part of an employer to discharge a duty to which he is subject under sections 2 to 6 of the Health & Safety at Work, etc Act 1974, the fine on summary conviction could be as much as £20,000.

Central Arbitration Committee

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Key points

The Central Arbitration Committee (or CAC) is the senior standing arbitration tribunal in Great Britain. A successor to both the Industrial Court (set up in 1919) and the Industrial Arbitration Board (1971), the CAC's constitution and independent status are presently described in sections 259 to 265 of the Trade Union & Labour Relations (Consolidation) Act 1992.

The CAC comprises a Chairman and one or more deputy chairmen appointed by the Secretary of State (after consultation with ACAS and other persons) and several members experienced in industrial relations also appointed by the Secretary of State. Those other members (apart from the Chairman) must include some persons whose experience is as representatives of employers and some whose experience is as representatives of workers. Members will normally hold office for a maximum of five years. Cases brought before the CAC are normally heard by the Chairman (or one of the deputy chairmen) and two members (one from each side of industry) (ibid. sections 259 and 260, as amended by section 22 of the Employment Relations Act 1999).

Trade disputes

Any matter constituting a trade dispute may be referred to the CAC for arbitration, so long as both parties to the dispute agree. However, all requests for voluntary arbitration must first be channelled through ACAS (the Advisory, Conciliation & Arbitration Service). Voluntary arbitration hearings are held in private unless the parties wish otherwise. The CAC's decision is not normally announced at the hearing (which is usually completed in a day) but is relayed in writing to the parties at a later date. See Trade disputes and arbitration elsewhere in this handbook.

Note
Although the parties to a trade dispute are under no legal obligation to honour an award made by the CAC, such awards are invariably accepted.

Section 183 of the 1992 Act allows that a trade union may complain to the CAC either that an employer has failed to disclose to representatives of the union information that he is required by section 181 to disclose for the purposes of collective bargaining or that he has failed to confirm such information in writing in accordance with that section. The complaint must be in writing and in such form as the CAC may require. If an employer fails to comply with the CAC's decision in such cases, the CAC will make an award on the claim that has effect as part of the contracts of employment of the employees concerned. For further particulars, please turn to the section titled Disclosure of information.

Disclosure of information for the purposes of collective bargaining

A recognised independent trade union may complain to the CAC that an employer has failed to comply with his (or her) duty under section 181 of that Act to disclose information without which the union would be to a material extent impeded in carrying on collective bargaining with that employer (ibid. section 183). For further details, please turn to the section titled Disclosure of information elsewhere in this handbook.

Recognition agreements and collective bargaining

Should an employer have rejected a trade union's request for recognition for collective bargaining purposes, in respect of a group or groups of workers (or if negotiations for a voluntary recognition agreement have broken down), the union in question may apply to the CAC for compulsory recognition. No such request will be valid unless, on the day on which it was made, the employer employed at least 21 workers (including workers employed by any associated employer) or had employed an average of at least 21 workers in the 13 weeks ending with that day (per sections 70A, 70B, 263A and Schedule A1 of the Trade Union & Labour Relations (Consolidation) Act 1992).

When asked to assist or intervene over an employer's rejection of a trade union's request for recognition, the CAC will not only have to decide the appropriate bargaining unit but must also satisfy itself that 10 per cent of the workers constituting that bargaining unit are members of the union. Furthermore, it must be persuaded that a majority of the workers in that bargaining unit would be likely to favour recognition. If the majority of workers in the bargaining unit are members of the union, the CAC will ordinarily issue a declaration of recognition without further ado. But if, notwithstanding majority membership, the CAC is not convinced that there is sufficient support for recognition, it will arrange for a secret ballot to be conducted by a qualified independent person within 20 working days of the latter's appointment. For further particulars, please turn to the section on trade union recognition elsewhere in this handbook.

If a majority of the workers voting in the secret ballot (and at least 40 per cent of the workers constituting the bargaining unit) vote in favour of recognition, the CAC will issue a declaration to the effect that the union is recognised as entitled to conduct collective bargaining with the employer on behalf of the bargaining unit.

The CAC may again be called upon to intervene if, within 30 working days after its declaration of recognition, the parties have been unable to agree a method by which they will conduct collective bargaining. If, within the next 20 working days, and in spite of the CAC's further intervention, there is still no procedural agreement, it will be for the CAC to determine the method by which the parties are to conduct their collective bargaining. The CAC's method will have effect as if it were contained in a legally enforceable contract made between the employer and the relevant trade union. The same applies even if the parties subsequently agree in writing to vary or replace the method specified by the CAC. See Trade union recognition elsewhere in this handbook.

Derecognition

Schedule A1 to the 1992 Act also lays down procedures for derecognition and for the intervention of the CAC if the original bargaining unit ceases to exist or is no longer an appropriate bargaining unit.

European Works Councils

Under the Transnational Information & Consultation of Employees Regulations 2000, which came into force on 15 December 1999, the central management of a multi-national company may apply to the CAC for a declaration as to the validity of a request by 100 or more of the company's employees (or by representatives of those employees) for the initiation of negotiations for the establishment of a European Works Council (EWC) (or an information and consultation procedure). Disputes about other specified matters (mainly procedural) arising prior to the establishment of an EWC may also be referred to the CAC. A failure to comply with a CAC declaration is punishable as if it were a contempt of court. For further particulars, please turn to the section titled European Works Councils elsewhere in this handbook.

CAC proceedings

Trade disputes

Before a CAC hearing takes place, the parties concerned will be asked to exchange evidence in the form of written statements. In disclosure of information cases (that are not routed through ACAS), the Chairman (or one of the deputy chairmen) will normally arrange an informal, joint meeting of the parties to clarify the issues and to give the parties an opportunity to resolve their difficulties (either themselves or with the help of ACAS) before a full hearing is arranged.

Recognition disputes

For the purpose of discharging its functions under Schedule A1 of the Trade Union & Labour Relations (Consolidation) Act 1992 ('Collective Bargaining: Recognition'), the chairman of the CAC will establish a three-person panel consisting of the chairman himself or herself (or a deputy chairman), a member of the Committee whose experience is as a representative of employers, and a member of the Committee whose experience is as a representative of workers. The panel may, at the discretion of its chairman, sit in private. If there is no unanimous decision, the question before the panel will be decided according to the majority opinion. If the majority of the panel do not have the same opinion, it will be up to the panel's chairman to decide the question (acting with the full powers of an umpire or, in Scotland, an oversman) (ibid. section 263A).

Guidance notes

Guidance on the procedure at CAC hearings and on the preparation of written statements is given in a booklet titled Notes for Guidance, available from the following address:

The Secretary

Central Arbitration Committee

Brandon House

180 Borough High Street

London

SE1 1LW
Telephone: 020 7210 3737/3738

The booklet referred to above will undoubtedly be revised in light of the expansion of the CAC's functions under the Employment Relations Act 1999.

Further information about the CAC's activities is to be found in the Committee's Annual Reports, copies of which will also be supplied on request.

Canteens and Rest Rooms for Employees-Cooperation, Employee's Duty Of

2009-11-17T00:03:00.000-08:00

Canteens and Rest Rooms for Employees

Key points

Whether or not employers are legally-bound to provide their workers with dedicated canteens or rests room will depend in large part on the type of activity or process in which an employer is engaged. Regulation 25(5) of the Workplace (Health, Safety & Welfare) Regulations 1992 - that apply to every workplace - states that 'suitable and sufficient facilities shall be provided for persons at work to eat meals where meals are regularly eaten in the workplace'.

By way of explanation, the accompanying Approved Code of Practice points out that 'seats in work areas can be counted as eating facilities provided they are in a sufficiently clean place and there is a suitable surface on which to place food. Eating facilities', it continues, 'should include a facility for preparing or obtaining a hot drink, such as an electric kettle, a vending machine or a canteen'. Furthermore, 'workers who work during hours or at places where hot food cannot be obtained in, or reasonably near to, the workplace should be provided with the means for heating their own food'.

Note
Copies of the code of practice referred to above (titled: Workplace Health, Safety and Welfare: Approved Code of Practice and Guidance Notes (L24) (ISBN 0 11 886333 9) can be purchased from HSE Books (Telephone: 01787 881165; Fax: 01787 313995).

Although there are circumstances in which employers must provide a separate canteen or mess room where their workers can take their meals (see Factory workers below), there is no legislation that requires them to provide a full catering service.

Note
The expression workplace means 'any premises or part of premises which are not domestic premises and are made available to any person as a place of work, and includes any place within the premises to which such person has access while at work and any room, lobby, corridor, staircase, road or other place used as a means of access to and egress from the workplace or where facilities are provided for use in conjunction with the workplace other than a public road' (ibid. regulation 2(1)).

All workers

All workers who take their meals on their employers' premises are entitled to do so in relative comfort and in hygienic surroundings, seated on chairs or benches, with a sufficient number of tables or desk tops on which to place their food. Where a separate canteen, mess room or eating area is provided, it too must be furnished with a sufficient number of tables and chairs (with backrests) and must comply with current food safety and hygiene regulations. Furthermore, the employer must nominate a person (or persons) whose job it is to keep the room or area clean and tidy.

Office workers

Regulation 25 does not give office workers the right to a separate eating area or canteen. Most office workers have a desk and chair and very little face-to-face contact with the public. Under the 1992 Regulations, a chair counts as a 'suitable eating facility' provided it is in a sufficiently clean place (such as an office) and there is a suitable surface (such as a desk top) on which an employee can place his or her food. Even so, the employer must provide a facility (such as an electric kettle or vending machine) for preparing or obtaining a hot drink. And, if his (or her) employees work at times or in places where hot food cannot be readily obtained, he must also provide a small cooker, hotplate or microwave oven in (or on) which his employees can heat their own food.

Shop assistants

Shop assistants spend most of their time on their feet. Whether or not they have their main meals on the premises, their employer must set aside a rest room or screened-off area where they can relax or 'put their feet up' during their morning and afternoon tea breaks or when business is slow. The rest room (or area) must be furnished with a sufficient number of chairs (with backrests) and tables, and be equipped with an electric kettle or a hot drinks vending machine. If there is no nearby café, snack bar or pub where they can readily buy hot food, their employer must also provide a hot plate (or a small cooker) on or in which they can heat their own food.

Factory workers

Workers in factories, workshops, warehouses and the like are entitled to separate eating facilities (away from their work areas) if their food is likely to be contaminated by dust, water, fumes or hazardous substances, or if they work in premises or are engaged in processes where eating, drinking (or smoking) is prohibited by regulations made under (or saved by) the Health & Safety at Work etc Act 1974. Their employer must provide an electric kettle or hot drinks vending machine and, if any employees work at night or in a place where it is difficult or inconvenient to purchase a hot meal, a hot plate, cooker or microwave oven in (or on) which they can heat their own food.

Eating, drinking, smoking, etc are currently prohibited in workplaces regulated by:

the Work in Compressed Air Regulations 1996; - the Control of Asbestos at Work Regulations 2002; - the Workplace (Health, Safety & Welfare) Regulations 1992; - the Control of Lead at Work Regulations 2002;

the Control of Substances Hazardous to Health Regulations 2002; and

the Ionising Radiations Regulations 1999.

Pregnant employees and nursing mothers

Nowadays, every workplace must be equipped with suitable rest facilities for use by employees who are pregnant or breastfeeding including a place where they can lie down when the need arises. The facilities should be situated close to (or as near as reasonably possible to) female toilets and washrooms (regulation 25(4), Workplace (Health, Safety & Welfare) Regulations 1992. Common sense will dictate what is suitable (or practicable) for one workplace and what is unsuitable in relation to another. In a large factory, office block, hotel or department store, an employer would be expected to set aside a small well-ventilated room furnished with one or more beds or reclining chairs and equipped with a toilet and washbasin. In a small establishment (where space is at a premium), a curtained-off area with a comfortable reclining chair (and some guarantee of privacy) would probably suffice.

Note
A free HSE leaflet titled Occupational health aspects of pregnancy (MA6, 1989) is available on request from the Health & Safety Executive's 'Freeleaflet'' line (Tel: 01787 881165 or Fax: 01787 313995).

Passive smoking

Regulation 25(3) of the 1992 Regulations (see above) also imposes a duty on employers to take such steps as are necessary to ensure that their employees can retire to a room or area where they can take a rest break, drink or eat their sandwiches (or whatever) in relative comfort - without experiencing discomfort from tobacco smoke. If there are no separate facilities for smokers and nonsmokers, the rest room must be designated a 'No Smoking' area. Although employers may be prepared to set aside a room or special area for the use of smokers, they are not legally-bound to do so. Indeed, in a small office or shop, where there is no separate rest room, and in which staff are expected or accustomed to taking their meals and rest breaks at their desks (or in a curtained-off area at 'the back of the shop'), the employer will have little choice but to introduce a 'No Smoking' rule throughout his premises.

Note
The issues associated with passive smoking in the workplace are reviewed in a free HSE leaflet titled Passive smoking at work (INDG 63), available from HSE Books, PO Box 1999, Sudbury, Suffolk, CO10 6FS; Tel: 01787 881165; or Fax: 01787 313995. In a consultative document titled Proposals for an Approved Code of Practice on passive smoking at work (published on 29 October 1999), the Health & Safety Commission propose, inter alia, that the risk assessment compulsorily carried out by all employers in accordance with the Management of Health & Safety at Work Regulations 1999 should include an assessment of the risks from passive smoking at work to the health of people who already suffer from asthma or chronic bronchitis. From this assessment, employers should determine what their options are for controlling exposure to environmental smoke, such as: banning smoking in the workplace (either completely or partially); physically segregating non-smokers from tobacco smoke; providing adequate ventilation; or adopting a system of work that reduces the time an employee is exposed to environmental tobacco smoke.

Offences and penalties

Non-compliance with health and safety legislation is a criminal offence which could lead to prosecution and a fine of up to £20,000. In some circumstances, the offending employer is liable to a fine of an unlimited amount and/or imprisonment for a period of up to two years.

Bank and Public Holidays

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Key points

The following days are bank and public holidays in England and Wales:

New Year's Day (1 January) Good Friday
Easter Monday
the first Monday in May
the last Monday in May
the last Monday in August
Christmas Day (25 December)
Boxing Day (26 December)

27 December (if either of Christmas Day or Boxing Day falls on a Sunday) or any days substituted for those days (or added to those days) by government or Crown proclamation (eg, New Year's Eve, 1999).

In Scotland, bank and public holidays fall on:

New Year's Day (1 January) (or 2 January, if New Year's Day falls on a Sunday)
2 January (or 3 January, if 2 January falls on a Sunday)
Good Friday
Easter Monday the first Monday in May
the last Monday in May
the first Monday in August
Christmas Day (or 26 December, if Christmas Day falls on a Sunday)
26 December (if it is not a Sunday).

And in Northern Ireland:

New Year's Day (1 January)
St Patrick's Day (17 March) (or 18 March, if 17 March is a Sunday)
Good Friday
Easter Monday
the first Monday in May
the last Monday in May
12 July
the last Monday in August
Christmas Day (25 December)
Boxing Day (26 December)
27 December (if either of Christmas Day or Boxing Day falls on a Sunday).

Strictly speaking, Christmas Day and Good Friday are common law public holidays in England, Wales and Northern Ireland; whereas the remainder are bank holidays as defined by the Banking & Financial Dealings Act 1971. For our purposes, the distinction is somewhat academic. Bank and public holidays are routinely referred to, collectively, as public holidays.

Rights of employees

Although employees have no statutory right to public holidays (paid or otherwise), it has long since been customary for employees to be given paid time off work on those days (or on days substituted for those days). If employees are required (or volunteer) to work normally on a public holiday, they will ordinarily expect to be paid at premium rates (eg, time-and-a-half or double time) for such work and/or to be granted equivalent paid time off work in lieu (to be taken within a specified period after the day in question). However, it should again be emphasised that premium payments for work on a bank or public holiday is not a statutory requirement.

Contracts of employment and collective agreements

Much will depend on what is written into the individual contract of employment or in the terms of a (local or industry-wide) collective agreement. To ensure that employees are made aware of their rights (if any) in relation to holidays (including bank and public holidays), section 1 of the Employment Rights Act 1996 requires employers to give each employee a written statement containing specified particulars of the terms and conditions of his (or her) employment, including particulars of his or her 'entitlement to holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the employee's entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated)'.

Details to be given in the 'principal statement'

It is as well to point out here that it is no longer lawful for a written statement (or contract of employment) to refer an employee to the provisions of a collective agreement or to a staff handbook (or similar document) for information about his (or her) entitlement (if any) to public holidays and holiday pay. That information must be given in the principal statement. If the statement makes no mention of public holidays, an employee may ask an employment tribunal to intervene and to decide what information should have been included in the statement. If the employer responds by dismissing the employee, the dismissal will be held to have been unfair and the employer will be ordered to pay compensation. See also Dismissal for asserting a statutory right and Written particulars of terms of employment elsewhere in this handbook.

Working Time Regulations 1998

Given that there is no statutory right to paid bank or public holidays, employers may (subject to any contrary provision in their workers' contracts) offset paid bank and public holidays against their obligation under regulation 13 of the Working Time Regulations 1998 to provide four weeks' paid annual holidays to each of those workers. But, if those same workers have long enjoyed an express or implied contractual right to bank and public holidays, in addition to their paid annual holidays, it would be a breach of contract for the employer unilaterally to override that right in order to modify the impact of regulation 13. Furthermore, employing part-time, casual, or seasonal workers on terms and conditions less favourable to them than those enjoyed by comparable full-time employees within the same establishment will undoubtedly fall foul of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, let alone (in the case of temporary or fixed-term employees) the Fixed-term Employees, etc Regulations 2002.

Bad Workmanship, Penalties For-Birth Certificates

2009-11-11T00:59:00.000-08:00

Key points

It is unusual nowadays for an employer to dock an employee's wages or salary because of accidental damage to property or goods. In any event, an employer 's right to do so is strictly regulated by Part II (Protection of Wages) of the Employment Rights Act 1996. Save for deductions in respect of income tax (PAYE) and National Insurance contributions (and other exceptions), an employer does not have the legal right to deduct money from an employee's wages or salary (or demand any payment) without that employee's express consent. If an employer wishes to deduct monies (or demand a payment from an employee) for bad workmanship:

his (or her) right to do so and the reason for making that deduction must be clearly laid down in the employee's contract of employment (a copy of which must have previously been supplied to the employee before the incident that prompted the making of that deduction);

alternatively, the employee must have previously given his (or her) consent in writing to the making of such a deduction for the purposes for which it is to be made - which consent may not be given or have effect retrospectively.

Even if an employee has given his (or her) written consent to the making of a deduction from his pay (or to accepting a demand for payment) in respect of damaged goods, the amount deducted (or payment demanded) should reflect the actual loss or damage suffered. However, there is nothing to prevent an employer disciplining or, indeed, dismissing an employee who wilfully or persistently causes damage to the employer's property or goods. Any monies outstanding on termination of employment in respect of damaged goods may be recovered in full from the wages or salary (and other contractual payments, including accrued holiday pay) due to the employee at that time.

If an employer does not comply with these requirements, an employee has three months in which to complain to an employment tribunal. If the complaint is upheld, the employer will be ordered to reimburse the full disputed amount. Bearing in mind that an employee has no need to resign in order to assert his (or her) statutory rights before an employment tribunal, the law warns that an employer will be liable to pay heavy compensation if an employee is dismissed or selected for redundancy for questioning or challenging any alleged infringement of his rights under the 1996 Act or for pursuing the matter before an employment tribunal (ibid. section 104). This rule applies whether or not the employee is entitled to the disputed right and regardless of the outcome of the proceedings.

Attachment of Earnings

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Key points

From time to time, the courts will serve so-called 'attachment of earnings' orders on employers requiring them to make periodical deductions from an employee's weekly or monthly pay cheque and to forward the money to the collecting officer of the court (section 6(1), Attachment of Earnings Act 1971). Similar legislation applies in Scotland and Northern Ireland.

An attachment of earnings order may be made:

by the High Court, to secure payments under a High Court maintenance order;

by a county court, to secure payments under a High Court or a county court maintenance order or the payment of a judgement debt; or payments under an administration order;

by a magistrates' court, to secure payments under a magistrates' court maintenance order or the payment of any sum adjudged to be paid by a conviction or the payment of any sum required to be paid by a legal aid contribution order (ibid. section 1).

Note, however, that an attachment of earnings order cannot be made against payments of statutory maternity pay (SMP).

Contents of order

Unless made to secure maintenance payments, an attachment of earnings order will specify the whole amount payable under the relevant adjudication (or so much of that amount as remains unpaid), including any relevant costs.

An attachment of earnings order will also specify the normal deduction rate, that is to say, the rate (expressed as a sum of money per week, month or other period) at which the court thinks it reasonable for the employee's earnings to be applied to meeting his (or her) liability under the relevant adjudication (ie, the conviction, judgement, order or other adjudication from which the employee's liability arises).

An order will also specify a protected earnings rate, ie, the rate below which, having regard to the employee's resources and needs, the court thinks it reasonable that the earnings actually paid to him should not be reduced (ibid. section 6(5)). Thus, if the employee in question is a piece-worker, whose earnings vary from week to week, the court may order that his take-home pay should not be less than a specified amount. If, for example, the prescribed attachment is £25 a week, and the employee earns an average £130 per week (net of income tax and national insurance contributions, etc), the court may decide that his take-home pay should never be less than £100 a week (his protected earnings rate). If, in any week, his net earnings are less than £125, the employer may only deduct the difference between his net earnings and that protected earnings rate. The shortfall would be carried forward and recovered in ensuing weeks until the full amount is paid to the collecting officer of the court.

Compliance by employer

If served with an attachment of earnings order, the employer must comply with its terms within seven days (ibid. section 7(1)).

If the employee in question is no longer employed by the employer, or subsequently resigns or is dismissed, the employer must notify the court of that fact within 10 days of the date on which the order was served or (as appropriate) within 10 days of the date on which the employee left his employ (ibid. section 7(2)).

Example

John Smith is a salesman with average earnings, after deduction of tax and national insurance contributions, of £400 a week. A county court has served an attachment of earnings order on John's employer directing him to deduct £65 per week from John's pay packet in respect of payments under a maintenance order. The court has decided on a protected earnings limit of £325, which means that his take-home pay must not be less than that amount. As John's income varies from week to week, there will be occasions when his employer must deduct less than £65 so as not to reduce his take-home pay below £325. However, any deficit (or arrears) must be carried forward from week to week. The picture over the first few weeks may be demonstrated by the following table:

Week No.

Net or 'attachable' earnings

Deductions under the order

Take-home pay

Arrears carried forward

1

£415

£65

£350

Nil

2

£410

£65

£340

Nil

3

£387

£62

£325

£3

4

£375

£50

£325

£18

5

£380

£55

£325

£28

6

£440

£93

£347

Nil

Every time the employer deducts money from John's wages, in compliance with an attachment of earnings order, he may also deduct £1.00 towards his own clerical and administrative costs which additional deduction (if made) must be listed on the itemised pay statement given to John with his weekly payslip.

Employer's administrative costs

Each time an employer deducts money from an employee's wages or salary, in compliance with the terms of an attachment order, he is entitled to deducted a further £1.00 towards his clerical and administrative costs (ibid. section 7(4)(a)). This figure is reviewed regularly.

Notification to employee

Likewise, on each occasion that an employer deducts money from an employee's earnings, in compliance with the terms of an attachment of earnings order, he must provide the employee with a written statement of the total amount of the deduction (ibid. section 7(4)).

Power of court to obtain information

Before making an attachment of earnings order, a court may order the relevant employer to provide a signed statement giving specified particulars of the relevant employee's earnings and anticipated earnings (ibid. section 14).

Offences

If an employer fails to comply with an attachment of earnings order, or fails to notify the court that the employee in question is no longer in his employ or has left his employ, or refuses or neglects to provide a statement of the employee's earnings and projected earnings, he is guilty of an offence and liable to a fine of up to £200. Furthermore, if he makes any statement to the court that he knows to be false in a material particular, he may be sent to prison for up to 14 days (ibid. section 23).

Advisory, Conciliation & Arbitration Service

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Key points

The Advisory, Conciliation & Arbitration Service (referred to below as 'ACAS' or 'the Service') is an independent statutory body, first established on 1 January 1976 under section 1 of the (since repealed) Employment Protection Act 1975 and continued by section 247 of the Trade Union & Labour Relations (Consolidation) Act 1992.

Note
ACAS performs its functions (and those of its officers and servants) on behalf of the Crown, 'but not so as to make it subject to directions of any kind from any Minister of the Crown as to the manner in which it is to exercise its functions under any enactment' (ibid. section 247(3)).

Constitution of ACAS

ACAS is directed by a Council which consists of a Chairman and nine ordinary members appointed by the Secretary of State for Employment. Following consultations with the bodies concerned, three of the ordinary members are appointed from organisations representing employers and three from organisations representing workers. If he thinks fit, the Secretary of State may appoint a further two ordinary members (one representing employers; the other, workers). He may also appoint up to three Deputy Chairmen, either from the existing ordinary members or in addition to those members. The Council's Chairman, Deputy Chairmen and ordinary members may be either full-time or part-time and hold office for a maximum of five years. However, previous membership does not affect a person's eligibility for reappointment. With the consent of the Secretary of State as to their numbers, manner of appointment and terms and conditions of service, the Council may appoint a Secretary and such other officers and staff as it may determine (ibid. section 251).

Conciliation officers

'ACAS shall designate some of its officers to perform the functions of conciliation officers under any enactment (whenever passed) relating to matters that are or could be the subject of proceedings before an employment tribunal' and 'references in any such enactment to a conciliation officer are to an officer designated under this section' (ibid. section 211). For further details, please turn to the section in this handbook titled Conciliation officers.

Issue of codes of practice

ACAS may issue codes of practice containing such practical guidance as it thinks fit for the purpose of promoting the improvement of industrial relations (ibid. section 199). For further particulars, please turn to the section titled Codes of practice.

Functions of ACAS

Under section 209 of the 1992 Act (as amended by the Employment Rights (Dispute Resolution) Act 1998), the general duty of ACAS is to promote the improvement of industrial relations. No longer does it have a particular duty to concentrate on the settlement of trade disputes. Its role in dispute prevention is likely to assume equal, if not greater, importance.

Advice

ACAS may, either of its own initiative or at the request of employers, employers' associations, workers and trade unions, give such advice as it thinks appropriate on matters concerned with or affecting (or likely to affect) industrial relations. The Service may also publish general advice on industrial relations matters (ibid. section 213).

Conciliation

ACAS may, either at the request of one or other of the parties (and with the consent of both) or of its own initiative, help (or offer to help) settle a trade dispute by conciliation - either by one of its own officers or by some other person nominated by the Service. Before intervening, ACAS will first encourage the parties to use their own agreed procedures (if any) for negotiation or the settlement of disputes (ibid. section 210). See also Trade disputes and arbitration elsewhere in this handbook.

Arbitration

If a trade dispute is unlikely to be settled by conciliation and existing disputes procedures have been used and failed, ACAS may, at the request of one or more of the parties to the dispute (but only with the consent of all of the parties), refer that dispute to arbitration - either by the Central Arbitration Committee (CAC) or by one or more arbitrators appointed by the Service for that purpose. If two or more arbitrators (or arbiters) are appointed, ACAS will appoint one of them to act as chairman. If a trade dispute is settled by arbitration, ACAS may (with the consent of all the parties) publish details of the award (ibid. section 212). See also the sections titled Central Arbitration Committee and Trade disputes and arbitration elsewhere in this handbook.

ACAS arbitration scheme

Under the so-called 'ACAS Arbitration Scheme', independent arbitrators (appointed by ACAS) are empowered to adjudicate on disputes between employers and employees about the fairness or otherwise of an employee's dismissal. The aim of the Scheme is to promote the settlement of unfair dismissal disputes in a confidential, informal, relatively fast and cost-efficient way. Unlike the handling of such complaints before the employment tribunals, the new arbitration scheme avoids the use of formal pleadings, witnesses and documentary procedures. The usual rules of evidence do not apply nor is strict law or legal precedent a determining factor. Instead, in reaching their decisions, the arbitrators will take into account the general principles of fairness and good conduct laid down in ACAS Code of Practice 1 on Disciplinary & Grievance Procedures and in related ACAS publications, notably its Discipline at Work Handbook. Arbitral decisions (or awards) will be final, with very limited opportunities for the parties to appeal or otherwise challenge the outcome.

Note
Information and guidance on the ACAS Arbitration Scheme can be obtained, free of charge, from ACAS Reader Limited on 0870 242 9090 or may be accessed and downloaded from website www.acas.org.uk/arbitration.htm.

Inquiry

Where appropriate, ACAS may inquire into any question relating to industrial relations generally or to industrial relations in any particular industry, undertaking or part of an undertaking. The Service may publish a report of its findings following any such inquiry if it considers that publication is desirable for the improvement of industrial relations, either generally or in relation to the specific question inquired into. But it will not publish its report without first sending a draft to the parties concerned and taking account of their views.

Fees

Under section 251A of the 1992 Act, ACAS may charge a fee for its services - but only in a case where it considers it appropriate to do so. Furthermore, it may charge a fee whether or not an employer or trade union (or individual) has asked for or invited its services. For some services, the Secretary of State may direct ACAS to charge a fee - either at the full economic cost of the service in question or at a specified proportion or percentage of that cost. However, ACAS may not charge a fee for its services unless it first forewarns a 'client' employer, trade union or individual that a fee will (or may) be levied. If the 'client' is not forewarned, there is no liability to pay.

Future developments

In the Explanatory Notes to the Employment Act 2002, the Government acknowledges that an ACAS-brokered settlement of a dispute between an employer and one or more of his employees is often reached at the very last moment before the case comes before an employment tribunal. Delayed settlements, says the Notes, are costly in terms of the time, money and other resources, not only to the parties in dispute but also to ACAS and the Employment Tribunals Service. Regulations to be made under section 24 of the 2002 Act (on a date yet to be specified) will amend section 7 of the Employment Tribunals Act 1996 to allow for the postponement of the fixing of a time and place for a hearing in order for the proceedings to be settled through conciliation. The regulations will set out the length of the conciliation period and will provide for its extension where the conciliator considers that settlement within a short additional timeframe is very likely. Section 24 of the 2002 Act further provides that ACAS's duty to conciliate cases will revert to a power to conciliate after the compulsory conciliation period has ended. The effect will be that, once the conciliation period is over, the conciliation officer will be able to judge whether to continue to conciliate the case or to pass it back to the Employmrent Tribunals Service so that a time and place can be fixed for a hearing.

Advertisements (Discriminatory)

2009-11-02T04:29:00.000-08:00

Key points

A job advertisement that indicates (or could be construed as indicating) an intention to discriminate against would-be job applicants on grounds of sex, marital status, gender reassignment, colour, race, nationality or national or ethnic origins, or on grounds of disability, is unlawful by virtue of section 38 of the Sex Discrimination Act 1975, section 29 of the Race Relations Act 1976, and section 11 of the Disability Discrimination Act 1995.

Note
It is not yet unlawful in the UK for an employer to discriminate against a job applicant (or existing worker) on grounds of age, political conviction, or religion - except in Northern Ireland where discrimination on grounds of religion or political opinion is outlawed by the Fair Employment & Treatment (Northern Ireland) Order 1998. However, the UK Government has three years within which to introduce legislation implementing the EU's Employment Directive 2000/78/EC, which prohibitions discrimination on grounds of sexual orientation, religion, or age. Legislation prohibiting discrimination on grounds of sexual orientation or religion is expected to come into force in the second half of 2003. However, exercising its right to do so, the Government has yet to decide whether to exercise its right to delay the introduction of Regulations prohibiting discrimination on grounds of age until December 2006.

Proceedings in such cases will ordinarily be brought by the Equal Opportunities Commission, the Commission for Racial Equality or the Disability Rights Commission (either of their own initiative or in response to a complaint from a member of the public).

Disability Discrimination Act 1995

If a job advertisement suggests an intention to discriminate against disabled persons, a disabled job applicant who responds to that advertisement and is either denied an interview or is refused (or not offered) the employment because of his disability, may complain to an employment tribunal and will be awarded compensation if his complaint is upheld. Furthermore, the publisher of the offending advertisement, as well as the person who inserted it, is liable to be fined - unless the publisher can show in his defence that he published the advertisement in reliance on a statement by the advertiser that it would not be unlawful to do so, and that it was reasonable for him to rely on that statement.

Note
The Disability Rights Commission (DRC), which has powers similar to those available to the Equal Opportunities Commission (EOC) and the Commission for Racial Equality (CRE) may caution any person (employer, employment agency, or publisher) who publishes a discriminatory advertisement that he (or she) is liable to be served with a non-discrimination notice unless he can satisfy the Commission that no discrimination was intended or occurred.

Sex Discrimination Act 1975

Section 38 (3) of the 1975 Act cautions that the use of a job title with a gender-specific connotation (such as 'waiter', 'salesgirl', 'postman' or 'stewardess') will be taken to indicate an intention to discriminate unless the advertisement in which that title appears clearly invites applications from persons of either sex. Incidentally, there is no law that requires an employer to use terms such as 'manageress' or 'chair' or other convoluted (or 'politically correct') versions of such traditional job titles. But giving undue prominence to a job title such as 'Air Stewardess' or publishing an advertisement for the more politically- acceptable 'Flight Attendant' in a woman's magazine (but in no other publication) could be construed as overtly discriminatory - notwithstanding a disclaimer to the effect that the vacancy is open to persons of either sex.

However, there are exceptions to this rule. An employer may decline to employ a man, woman or gender reassignee in a particular job if the sex of the successful applicant is a genuine occupational qualification (or, in the case of a gender reassignee, a supplementary genuine occupational qualification) for that job. Furthermore, there are some industrial processes and occupations in which the employment of women is prohibited by health and safety regulations - as to the latter, please turn to the sections titled Sex discrimination and Women and young persons, employment of, elsewhere in this handbook.

To summarise: a job may be restricted to persons of a particular sex:

if it is likely to involve physical contact with women/men in circumstances where those women or men might reasonably object to its being carried out by a man/woman;

Note
Employers should be careful not to interpret sub-paragraph (a) or, for that matter, (b) too literally. In Etam plc v Rowan [1989] IRLR 150, an employer was held to have discriminated against a man on grounds of sex when she refused to employ him to sell women's lingerie. In a not dissimilar case, that of Wylie v Dee Co. [1978] IRLR 103, a woman was refused a job as sales assistant with a firm of gentlemen's outfitters because her duties would involve taking a man's inside leg measurements. The tribunal held that there was more to working in a menswear store than measuring a man for a pair of trousers. Should a customer object to being attended to by a woman in this way, there was nothing to prevent her seeking help from one of her male colleagues.

if the holder of the job is likely to do her work in circumstances where men might reasonably object to the presence of a woman because they are in a state of undress or are using sanitary facilities (and vice versa);

if, in the case of a person who intends to undergo, is undergoing or has undergone gender reassignment, the job in question would involve the holder being liable to be called upon to perform intimate physical searches (pursuant to statutory powers);

if, because of the nature or location of the employer's establishment, it would be impracticable for the holder of the job to live other than in dormitories (or similar) occupied, or normally occupied, by persons of the opposite sex - if the accommodation in question is not equipped with separate sleeping arrangements, washrooms or toilets - but only for so long as it remains unreasonable to expect the employer to provide separate facilities for women (or men);

if, in a situation similar to that described in (d) above, other employees sharing such accommodation and facilities might reasonably object (in the interests of preserving decency and privacy) to the presence of a person who intends to undergo, or is undergoing, gender reassignment - always provided that it would be unreasonable to expect the employer either to equip those premises with suitable accommodation or to make alternative arrangements;

if, on health and safety grounds, the job cannot lawfully be offered to a woman of whatever age, or to a woman of reproductive capacity, or to one who is either pregnant or breastfeeding or has recently given birth (eg, in work involving exposure to ionising radiations or to lead or lead compounds)(but see the Note on page 507);

if the job needs to be filled by a man because it is likely to involve work outside the United Kingdom in countries (eg, certain Middle Eastern countries) whose laws and customs are such that the work could not (or could not effectively) be carried out by a woman;

if the job is one of two intended to be filled by a married couple (eg, caretaker and cook) sharing accommodation provided by the employer on the employer's premises.

There are similar exceptions in relation to jobs in hospitals, prisons, and other establishments for persons requiring special care, supervision or attention; childcare jobs; and jobs that provide individuals with personal services promoting their welfare or education.

Being a man or a woman is also a genuine occupational qualification if the job in question calls for a man (or a woman) for reasons of physiology (eg, fashion model, club hostess) or authenticity (eg, in dramatic performances and other forms of entertainment). However, a job applicant's supposed physical strength or stamina may not be used as a basis for refusing to entertain applications from women (for instance, for work as a builder 's labourer). If there is to be a test of strength or stamina, all job applicants (male as well as female) should be invited to submit to that same test.

Case Law
Cases decided in this area include that of Roadburg v Lothian Regional Council [1976] IRLR 283 when it was held that an existing imbalance of the sexes in a team of voluntary services officers was not a reason sufficient to justify a refusal to recruit a woman to that team; and that of Batisha v Say & Longleat Enterprises [1976] 19 man. Law 23, when it was held that unlawful discrimination occurred when a woman was denied employment as a cave guide.

If an employer instructs one of his subordinates (eg, a personnel manager or factory foreman) to commit an unlawful discriminatory act, he (or she) is guilty of an offence and liable to be proceeded against by the Equal Opportunities Commission.

Race Relations Act 1976

An employer is at liberty to discriminate against job applicants on racial grounds if he (or she) can prove that being of a particular racial, national or ethnic group is a genuine occupational qualification for the vacancy in question. Such an exception is permissible:

if the job requires participation in a dramatic performance or other entertainment in a capacity for which a person of a particular racial group is required for reasons of authenticity;

Note
In this context, the expression racial group means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group in which he or she falls (section 3(1), 1976 Act).

if the job involves participation as an artist's or photographic model in the production of a work of art, visual image or sequence of visual images for which a person of a particular racial group is required for reasons of authenticity;

if the job involves employment in a place (such as a Chinese restaurant) where food or drink is (whether for payment or not) provided to and consumed by members of the public or a section of the public in a particular setting for which, in that job, a person of a particular racial group is required for reasons of authenticity;

if the intended occupant of the job will be required to provide persons of the same racial group with personal services promoting their welfare, and those services can most effectively be provided by a person of that racial group.

A job advertisement will be deemed unlawful if it imposes restrictions or requirements that (albeit unintentionally) effectively discriminate against persons on grounds of colour, race, nationality, or ethnic or national origins. An example of this would be an advertisement that requires candidates to possess qualifications gained entirely (or available only) in the United Kingdom. Another would be an advertisement lodged in a newspaper or journal whose circulation is known to be restricted to persons from a particular racial group.

Case Law
In Hussein v Saints Complete House Furnishers [1979] IRLR 337, a small firm of household furnishers in Liverpool declined to recruit job applicants from postal districts 7 and 8 because persons previously recruited from those areas tended to bring with them, or attract, unemployed friends of their own age who were in the habit of loitering about the front of the shop. The Tribunal found that, although the employer had not intended to discriminate against the complainant, his exclusion of candidates from postal districts 7 and 8 effectively denied job opportunities to some 50 per cent of the black community in Merseyside. The firm's recruitment policy was indirectly discriminatory and, therefore, unlawful.

Enforcement

Job advertisements that are perceived to be discriminatory on grounds of sex, race or disability will be dealt with by the Equal Opportunities Commission (EOC), or the Commission for Racial Equality (CRE) or the Disability Rights Commission (DRC). Any one of those bodies may serve notice on the offending employer or newspaper proprietor that he (or she) will be issued with a Non- Discrimination Notice unless able to satisfy the Commission (within the period specified in the notice) that no discrimination was intended or occurred.

A Non-Discrimination Notice enjoins the employer who inserted (and/or newspaper proprietor who published) the offending advertisement to end his (or her) unlawful discriminatory practices and to furnish evidence of compliance. The employer who repeats the offence within a period of five years is likely to be taken to court and served with an injunction that is enforceable by committal for contempt.

Although a member of the public cannot bring legal proceedings against an employer (or newspaper proprietor) in respect of a discriminatory advertisement, a job applicant denied an interview or an offer of employment on grounds of sex, race or disability (perhaps as a consequence of that same job advertisement) may present a complaint of unlawful discrimination to an employment tribunal - as to which, see Racial discrimination and Sex discrimination elsewhere in this handbook. See also Access to employment and Disabled persons .

Adoption Leave and Pay

2009-10-30T20:26:00.000-07:00

Key points

From 6 April 2003, an employee who has been newly-matched with a child for adoption, or whose partner has been newly-matched with a child for adoption, or who is one of a couple who have been newly matched with a child for adoption (in each case, by an approved adoption agency), and who has been continuously employed by his or her employer for 26 weeks or more leading into the week in which notification of being matched occurred, has the right to take up to 26 weeks' ordinary adoption leave, followed immediately by up to 26 weeks' additional adoption leave. An employee with average earnings of £75 or more per week will qualify to be paid statutory adoption pay (SAP) during his or her ordinary adoption leave period. The relevant legislation is to be found in the Paternity & Adoption Leave Regulations 2002 which came into force on 8 December 2002.

Note
By definition, the right to adoption leave is not available to a step-father or mother who adopts his or her partner's children.

It is as well to point out that the right to take up to 52 weeks' adoption leave is available to those eligible employees only who were informed on or after 6 April 2003 that they had been matched with a child for adoption - unless the notification occurred before 6 April 2003, but the child was not actually placed with them (or their partners) until 6 April 2003 or later. Furthermore, the right to adoption leave is available to one member only of a couple (whether married or otherwise) who have had a child placed with them for adoption - in which event, it is up to the adoptive parent or parents to decide which of them takes the adoption leave. However, the other partner may be entitled to take one or two weeks' paid paternity leave during the eight weeks following adoption and up to 13 weeks' unpaid parental leave, as to which please turn to the sections on Parental leave and Paternity leave elsewhere in this handbook.

Disrupted placement in the course of adoption leave

An employee who has already begun a period of adoption leave, in anticipation of being placed with a child, may remain on adoption leave for up to eight weeks (or, where appropriate, for a further eight weeks) if, for one reason or another, the expected placement does not occur or if the child dies or is returned to the adoption agency under section 30(3) of the Adoption Act 1976 or section 30 of the Adoption (Scotland) Act 1978.

Statutory Adoption Pay

An employee who qualifies for adoption leave, and who earns an average of £77 or more per week (during the period of eight weeks ending with the last payday before the end of the week in which notice of being matched for adoption was given) will normally qualify for up to 26 weeks' Statutory Adoption Pay (SAP) during his or her ordinary adoption pay period. The adoption pay period is the period that begins on the Sunday immediately following the day on which an employee begins his or her ordinary adoption leave.

There are two rates of SAP, the higher rate and the lower rate. The higher rate is an amount equivalent to nine-tenths of the employee's average weekly earnings and is payable for each of the first six weeks of the adoption pay period. The lower rate, payable for the remaining (up to) 20 weeks, is £100 a week or 90 per cent of the employee's average weekly earnings, whichever is the lower of those amounts. An employer who has lawfully paid SAP to an employee may reclaim 92 per cent of the amount paid by deducting the amount in question from payments of employees' and employers' NI contributions made to the Collector of Taxes at the end of each tax month. Employers who are eligible for small employers' relief may recover 100 per cent of the amount of SAP paid, plus an additional amount (currently 4.5 per cent) in compensation for the employer's portion of NI contributions paid on SAP.

Notification procedure

To exercise his (or her) right to adoption leave, an employee must (within seven days of the date on which he was notified of having been matched with a child for adoption) inform his employer (in writing, if requested to do so) of his intention to take ordinary adoption leave, specifying:

the date on which the child is expected to be placed with him for adoption; and

the date on which he has elected to take adoption leave (which may begin either on the date on which the child is placed with him for adoption or no more than 14 days before the expected placement date).

Where his employer requests it, the employee must also produce documentary evidence (letters, certificates, etc) issued by the adoption agency confirming the name and address of the agency, the name and date of birth of the child, the date on which the agency informed him that he had been matched with that child; and the date on which the agency expects to place the child with him.

Employees who have correctly notified their employers of the date on which they intend to start their adoption leave may change their minds, so long as they inform their employers at least 28 days beforehand of the revised start date.

An employer, who has been correctly notified of the date on which an employee intends to start his or her adoption leave, must write to the employee in question, within the next 28 days, setting out the date in which the employee would be expected to return to work on completion of his or her full entitlement to adoption leave.

Statutory rights during and after adoption leave

While absent from work on adoption leave, an employee has rights similar to those available to employees on maternity leave (as to which, see Maternity rights elsewhere in this handbook). In short, an employee absent from work on adoption leave has the right:

if made redundant during his or her ordinary or additional adoption leave period, to be offered suitable alternative employment under a new contract of employment to begin on the day immediately following the day on which his or her previous contract of employment came to an end;

to the continuation of certain contractual rights and duties while absent from work on adoption leave (save for the right to be paid his or her normal wages or salary while absent on adoption leave);

to return to work after adoption leave in his or her original (or in a substantially equivalent) job;

to ask for more flexible working arrangements on his or her return to work (as to which, see Flexible Working elsewhere in this handbook); and

not to be dismissed, selected for redundancy, victimised, or subjected to any other detriment for exercising or asserting his or her rights under the Paternity & Adoption Leave Regulations 2002.

Employees on adoption leave, who wish to return to work earlier than the date on which they are otherwise due to return, must notify their employers of the proposed earlier date of return at least 28 days beforehand. Should they fail to do so, their employers are within their rights to delay their return until those 28 days have elapsed or until the date on which they are otherwise due to return, whichever occurs sooner.

Claims and remedies

Eligible employees who are denied their entitlement to adoption leave, or who are dismissed, selected for redundancy, victimised, or subjected to any other detriment for asserting their rights under the Paternity & Adoption Leave Regulations 2002, may complain to an employment tribunal and will be awarded appropriate compensation if their complaints are upheld.

See also Flexible working, Maternity rights, Parental leave, and Paternity leave elsewhere in this handbook.

Access to Employment

2009-10-28T01:19:00.000-07:00

Key points

Under the common law, an employer cannot be compelled either to employ a particular job applicant or to reinstate or re-engage someone who has been dismissed. As Lord Davey remarked in Allen v Flood [1898] AC 1: 'An employer may refuse to employ [a workman] for the most mistaken, capricious, malicious or morally reprehensible motives that can be conceived, but the workman has no right of action against him.' And again: 'A man has no right to be employed by any particular employer, and has no right to any particular employment if it depends on the will of another.'

Although an employer retains his (or her) common law right to pick and choose the people he employs, there may be a price to pay for exercising that right. In short, an employer can be ordered to pay compensation to a job applicant if a tribunal or court is satisfied that the employer acted unlawfully in refusing (or deliberately omitting) to employ the person concerned on grounds of:

sex, marital status, pregnancy or gender reassignment;

colour, race, nationality, or national or ethnic origins;

disability;

trade union membership or non-membership;

religion or political opinion (Northern Ireland only); or

a 'spent' conviction.

Recent developments: In December 2001, the Government published a consultation document (entitled Towards Equality and Diversity) outlining its proposals for implementing EU Directives 2000/43/EC and 2000/78/EC, the first of which prohibitions discrimination on grounds of race and ethnic origin; and the second, discrimination on grounds of sexual orientation, religion or belief, disability, or age. The consultation period ended on 29 March 2002. Legislation on sexual orientation and religion (including technical amendments to the Race Relations Act 1976) will be implemented in the second half of 2003. Legislation ending the exemption for small employers in the Disability Discrimination Act 1995 (as well as other amendments to that Act) will be brought into force in October 2004. However, legislation prohibiting discrimination on grounds of age is unlikely to be introduced before December 2006. Copies of the Consultation Document may be accessed and downloaded from website www.dti.gov.uk.

Sex discrimination

Discrimination on grounds of sex, marital status or 'gender reassignment' (see next paragraph) is prohibited by the Sex Discrimination Act 1975. An employer's refusal or deliberate failure to offer employment on such grounds will very likely prompt a complaint to an employment tribunal. If such a complaint is upheld, the employer will be ordered to pay compensation to the complainant of an unspecified amount that includes damages for loss of prospective earnings and injury to feelings (plus interest on the sum awarded).

Discrimination against transsexuals (more precisely, against persons who intend to undergo, are undergoing or have undergone gender reassignment) was outlawed on 1 May 1999 by the Sex Discrimination (Gender Reassignment) Regulations 1999.

Note
Following the decision of the European Court of Justice in Marshall v Southampton and South-West Hampshire Area Health Authority (No. 2) (Case No. C271/91) and the coming into force on 22 November 1993 of the Sex Discrimination & Equal Pay (Remedies) Regulations 1993 employers should by now be aware that there is no longer a ceiling or upper limit on the amount of compensation that may be awarded to a job applicant unlawfully denied access to employment on grounds of sex, marital status or (now) gender reassignment.

An employer may be able to justify his refusal to employ a particular job applicant on the grounds that being a woman or a man (or being married) is a genuine occupational qualification for the job in question (ibid. section 7). The genuine occupational qualification defence is also permissible in certain circumstances involving gender reassignees. For further particulars, please turn to the section titled Sex discrimination elsewhere in this handbook.

If an employment tribunal (at the suit of the Equal Opportunities Commission [EOC]) finds that an employer had yielded to third party pressure to discriminate against a job applicant on grounds of sex, marital status or gender reassignment, and that the third party concerned is likely to do so again, the EOC may apply to the county court for an injunction restraining that person from committing any further unlawful acts (ibid. sections 40 and 72).

A complaint of unlawful discrimination under the 1975 Act must be presented to an employment tribunal not later than three months after the date on which the act complained of was done (ibid. section 76(1)).

Pregnancy

It is not at all clear whether a refusal to employ a woman because she is pregnant (or for a connected reason) is in the same legal category as a refusal to employ a woman simply because she is a woman. Although prima facie tantamount to unlawful discrimination on grounds of sex, there may well be circumstances in which an employer's refusal to engage a pregnant job applicant could be justified before an employment tribunal.

For example, an employer will be disinclined (understandably) to recruit a heavily-pregnant woman as a marketing manager (however well-qualified or better-qualified she may be than other candidates for the post) if one of her first duties is to exercise her undoubted skills to launch a major new product range at a time when she will be off work preparing for childbirth or having her baby - and likely to be absent from work on maternity leave for up to 52 weeks. Arguably, the employer's refusal to employ would have little to do with the woman's being pregnant. Indeed, an employer would be equally disinclined to appoint a man to the same post knowing that, within a matter of weeks, he would be going into hospital for several months, at a time when the survival of the employer's business might very well hinge on the new appointee being at work at the very time he is likely to be away. But comparing a healthily-pregnant woman with a sick man is risky, especially in the current climate. Should such a case go before an employment tribunal, the employer would need to advance a very strong case indeed.

Note
Section 51 of the Sex Discrimination Act 1975 allows that it is not unlawful for an employer to refuse to employ a woman if doing so would be in breach of health and safety legislation restricting or prohibiting the employment of women in certain hazardous occupations. However, in Mahlburg v Land Mecklenburg-Vorpommern [2000] IRLR 276(, the European Court of Justice (ECJ) held that it is not permissible to refuse to employ a new or expectant mother in work otherwise prohibited to her on health and safety grounds if the employment is intended to be permanent and she is the best candidate for the job. In a not dissimilar case, that of Webb v EMO Air Cargo (UK) Ltd (No. 2) [1994] ICR 770 ECJ, a woman initially recruited as a replacement for a key employee during her absence on maternity leave (with a promise of permanent employment when the person she was replacing returned to work) was dismissed when it was discovered that she too was pregnant and would be taking maternity leave at the same time as the colleague she was meant to replace. An employment tribunal, the EAT and the Court of Appeal all agreed that the woman had been dismissed not because she was pregnant but because she would not have been available to carry out her primary task of doing the work of the other employee during the latter's absence on maternity leave. Her dismissal, they said, was therefore fair. The House of Lords were not so sure. Mrs Webb had been employed for an indefinite period, even though initially employed to take over the work of a woman who would be absent for several weeks on maternity leave. Their Lordships referred the matter to the European Court of Justice (ECJ) which, on 14 July 1994, held that the woman's dismissal amounted to unlawful sex discrimination in breach of the 1976 European Union directive on equal treatment for men and women in the workplace. The ECJ also put a great deal of emphasis on the fact that Mrs Webb had been employed for an indefinite period. Had Mrs Webb been recruited specifically to replace the other employee, and had she been informed from the very outset that she would be dismissed once the permanent encumbent had returned to work, the outcome might well have been different.

Colour, race, nationality or ethnic or national origins

Section 4 of the Race Relations Act 1976 cautions that it is prima facie unlawful to refuse or 'deliberately omit' to offer employment to a person because of his or her race, colour, nationality or ethnic or national origins, unless being of a particular racial group is a genuine occupational qualification for the job in question (ibid. section 5). If a tribunal upholds a complaint of unlawful racial discrimination, it will order the employer to pay compensation including damages for injured feelings and loss of potential earnings. With the coming into force on 3 July 1994 of the Race Relations (Remedies) Act 1994, there is no longer an upper limit on the amount of compensation that an employer may be ordered to pay in such circumstances. For further particulars, please turn to the section titled Racial discrimination elsewhere in this handbook.

Note
The reader will be aware that section 8 of the Asylum & Immigration Act 1996 prohibits the employment in the UK of any person aged 16 or over who is either an illegal immigrant or who does not have the legal and still valid right to seek and obtain employment during his (or her) stay in the UK. The penalty for a breach of this requirement is a fine of up to £5,000. See Foreign nationals, employment of elsewhere in this handbook.

The Commission for Racial Equality (CRE) may, for its part, institute proceedings before an employment tribunal against any person or organisation that has either induced or attempted to put pressure on an employer to discriminate against job applicants on racial grounds. If the tribunal confirms that such pressure had been brought to bear and that the guilty party is likely to do so again, the CRE may apply to a designated county court (or to a sheriff court) for an order restraining the person or organisation concerned from committing any further unlawful acts (ibid. sections 31 and 63).

A complaint of unlawful discrimination under the 1976 Act must be presented within three months of the date on which the act complained of was done (ibid. section 69(1)).

Disability discrimination

Under section 4 of the Disability Discrimination Act 1995, it is unlawful for an employer (in a business or organisation that employs 15 or more people) to refuse to interview or employ an otherwise well-qualified job applicant simply because that applicant is disabled. Nor can an employer justify that refusal by claiming that the premises (ie, the building or location in which the applicant would be required to work) are not suitable for use by disabled persons in general or for the particular job applicant in the light of his (or her) disability.

>It is also unlawful for an employer to instruct some other person or body (eg, the personnel department or an employment agency) not to interview or recruit disabled job applicants or (in the case of an agency) submit such candidates for employment.

A disabled job applicant may complain to an employment tribunal if denied an interview or an offer of employment because of his (or her) disability. If the tribunal finds the complaint to be well-founded, it will make a declaration to that effect and will order the respondent employer (agency or organisation) to pay compensation to the complainant - including compensation for injury to feelings (ibid. section 8). For further particulars, please turn to the section titled Disabled persons elsewhere in this handbook.

Trade union membership or non-membership

Section 137 of the Trade Union & Labour Relations (Consolidation) Act 1992 warns that 'it is unlawful to refuse a person employment because he (or she) -

is, or is not, a member of a trade union, or

is unwilling to accept a requirement -

to take steps to become or cease to be, or to remain or not to become, a member of a trade union, or

to make payments or suffer deductions for not being a member of a trade union'.

What this means in effect is that an employer must disregard a job applicant's membership or non-membership of a trade union when determining his or her suitability for employment. Nor is it lawful for an employer to require a job applicant to agree to pay money (to a charity, or whatever) or to have money deducted from his or her pay packet as an alternative to the payment of trade union dues. Any term in a contract of employment or collective agreement (express or implied) that purports to override an employee's statutory rights in this respect is null and void.

A job applicant denied an interview or refused employment on grounds of his (or her) trade union membership or non-membership may complain to an employment tribunal. If such a complaint is upheld, the tribunal will order the employer to pay the complainant up to £53,500 in compensation. A complaint may also be presented if there is reason to suspect that the employer refused to entertain or process a job application because of the applicant's trade union membership or non-membership - without regard to the latter's capabilities or qualifications for the job in question.

In some trades and industries, employers would only accept job applications from members of a particular trade union whose names had been put forward by that trade union. Such an arrangement or practice (if it still persists) is unacceptable if its effect is to exclude applications from persons who are not members of a particular trade union or of any trade union. Indeed, any employer party to such an arrangement or practice will nowadays be deemed without more to have unlawfully refused to employ a particular job applicant because he or she was not a member of a trade union (ibid. section 137(4)).

If, on a complaint under section 137 of the 1992 Act, it is alleged that a trade union or other person threatened the employer with a strike or some other form of industrial action if he recruited a nonunion employee, the job applicant or the employer may request the employment tribunal to direct that the person who exercised that pressure be joined (or, in Scotland, sisted) as a party to the tribunal proceedings. If the complaint is upheld, the trade union official or member concerned will be ordered to pay the whole or part of any award of compensation payable to that job applicant (ibid. section 142). See Trade union membership and activities and Closed shop elsewhere in this handbook.

Religion or political opinion

Under the Fair Employment & Treatment (Northern Ireland) Order 1998, an employer is liable to heavy penalties if he (or she) refuses to employ a job applicant because of that person's religious belief or political opinion. In practice, this means that Protestants and Catholics must be afforded equal access to job opportunities and must not be denied employment or refused an interview because of their religious or political affiliations. It is as well to note that discrimination on grounds of religion is to be outlawed throughout the UK when legislation implementing Employment Directive 2000/78/EC comes into force in the second half of 2003.

'Spent' convictions

Section 4(2) of the Rehabilitation of Offenders Act 1974 states that a person may not lawfully be excluded from any office, profession, occupation or employment because of a 'spent' conviction. Indeed, 'where a question seeking information with respect to a person's previous convictions, offences, conduct or circumstances is put to him (or her).the question shall be treated as not relating to spent convictions or to any circumstances ancillary to spent convictions, and the answer thereto may be framed accordingly'.

In short, any job applicant with a 'spent' conviction has the legal right to lie about that conviction when asked by a prospective employer if he or she has ever been in prison or been convicted of an indictable offence. The exceptions to this rule are explained elsewhere in this handbook in the section titled Convicted persons, employment of.

Although it is prima facie unlawful to refuse to employ a person on discovery that he (or she) has a 'spent' conviction, the 1974 Act does not offer a remedy for a person discriminated against in this way. At best, the applicant can apply to the court for a declaration of 'unlawfulness'. But that falls far short of any award of compensation for loss of potential earnings and injured feelings.

Note
To dismiss an otherwise competent employee on discovery that he (or she) had concealed details of a spent conviction (and for that reason alone) will almost certainly lead to a finding of unfair dismissal and an award of compensation (unless the employee in question was in an excepted occupation).

Activities of employment agencies and businesses

Any employment agency that discriminates against (or denies its services to) job applicants on grounds of race, colour, ethnic origins, nationality, sex, marital status, gender reassignment, disability, or trade union membership or non-membership (whether of its own initiative or on the instructions of a client employer) could be ordered to pay the whole or part of any compensation awarded to a disgruntled job applicant.

In the appropriate circumstances, the person (or persons) running the agency could be served with a prohibition order by an employment tribunal (at the suit of the Secretary of State) effectively prohibiting any such person from carrying on (or being in any way concerned with the carrying on) of an employment agency or business for a period of up to 10 years. A failure to comply with the terms of a prohibition order is a serious offence for which the penalty, on summary conviction, is a fine of up to £5,000 (per sections 3 to 3D, Employment Agencies Act 1973). See also Employment agencies elsewhere in this handbook.

Absenteeism-Attachment of Earnings

2009-10-24T20:09:00.000-07:00
Absenteeism

Key points

* Employers should have no need to remind employees that they are expected to turn up for work on time and to remain at their desks or workstations until the end of their working day or shift. People who are routinely late for work, or who take extended lunch breaks, or who are in the habit of slipping away early, or who take an unauthorised day off every now and again to attend the funeral of yet another distant relative, are putting their jobs at risk. They are in breach of their contracts of employment and should not be surprised if their employer decides that 'enough is enough'.

The reasonable employer

* The reasonable employer will first seek out the malingerer, invite him (or her) into his office 'for a chat', listen to his explanations and (if those explanations are unacceptable or incredible) warn him that he will be dismissed if he does not mend his ways. Fortunately, most malingerers are quickly identified and uprooted - long before they have earned the right to pursue a complaint of unfair dismissal before an employment tribunal.

* As a matter of good industrial relations practice, an employer should never presume that an absentee employee is malingering. Common sense alone dictates that he (or she) take reasonable steps to find out why the employee has not turned in for work on time, why he has not yet returned from his lunch-break, why he slipped away early, or why he took a day off work without permission. It could be that the employee has suddenly been taken ill or has been injured and unable to contact his employer. He may have suffered a bereavement or have been distracted by a serious domestic crisis. If he is yet again late for work, he could have been delayed by traffic, or whatever.

* The reasonable employer will ask the right questions, consider the facts as he knows them, review the employee's punctuality and attendance record, reflect on his (or her) general attitude and demeanour, and take his decision accordingly. This latter approach is particularly important in the case of a long-serving and otherwise well-respected employee whose recent and uncharacteristically poor attendance record may be symptomatic of emergent domestic, emotional or financial worries which may not have been fully explored or investigated. Although his conduct may be no less disruptive than that of the professional malingerer, his peremptory dismissal would undoubtedly be viewed as unfair by an employment tribunal.

* An employee who is disciplined or dismissed because of his (or her) unacceptable attendance record should be afforded an opportunity to appeal against that decision if he considers that he has been unfairly treated.

* Although employees are well aware that persistent late attendance and unauthorised absenteeism will inevitably invite disciplinary action, section 3 of the Employment Rights Act 1996 nonetheless requires employers to include a note in the written statement issued to each employee 'specifying any disciplinary rules applicable to the employee or referring to a document that is reasonably accessible to the employee and that specifies such rules'.

Note

For the time being at least, this requirement does not apply to a small firm or business in which the total number of persons employed (including persons employed in other branches of the same business or by any associated employer) is less than twenty (ibid. section 3(3)). However, from September 2003, when section 36 of the Employment Act 2002 is expected to come into force, that exemption disappears. What this means is that all employers will henceforth be required to adopt minimum rules and procedures for dealing with disciplinary issues within the workplace. For further particulars, see Disciplinary rules & procedures

* High levels of absenteeism can be very costly and damaging, especially to the small business. When drawing up his disciplinary rules or explaining his situation to the job applicant or new recruit, an employer should stress the importance of good timekeeping and should point out the consequences if an employee ignores prior warnings and routinely takes time off work without good reason or prior authorisation. Most employers insist that people who are likely to be late or who will not be attending for work on any day should contact them as soon as possible, certainly within one hour of their normal starting time on that day. See also Dismissal on grounds of ill-health and Sickness and statutory sick pay.

* ACAS Code of Practice 1 (Disciplinary & Grievance Procedures) urges that, except for gross misconduct, no employee should be dismissed for a first breach of discipline. But, a great deal will depend on the circumstances, including the size and administrative resources of the employer's undertaking. As was suggested earlier, few professional malingerers will survive with an employer long enough to qualify to pursue a complaint of unfair dismissal before an employment tribunal. So far as the longer-serving employee is concerned, it will be for the tribunal to decide whether, in the circumstances, the employer had acted reasonably in taking the decision to dismiss. Copies of ACAS Code of Practice 1 (Ref. COP1) are available from ACAS Reader Limited on 0870 242 9090.

Deductions from pay

* An employer does, of course, have every right to withhold the wage or salary otherwise due to an employee in respect of a period of unauthorised absence from work. But to withhold an excessive amount (for example, by deducting a half hour's pay to punish an employee who is five minutes late for work) is tantamount to imposing a fine. This is illegal, unless:

1. the employee had given his (or her) prior written consent to the making of that additional deduction; or
2. the employer's right to make that deduction had been expressly incorporated in the employee's contract of employment or had previously been notified to the employee in writing.

* An employee cannot be required to give retroactive consent to the making of a deduction from his (or her) pay packet. In other words, an employer 's policy in relation to late attendance and unauthorised absenteeism must be made known to every employee before he can presume to put that policy into effect (see section 13 of the Employment Rights Act 1996). See also Deductions from pay, Dismissal for misconduct, Dismissal on grounds of ill health and Wages, payment of.

Time off work

* The reader will be aware that certain categories of employee have the statutory right to be permitted a reasonable amount of paid (or unpaid) time off work to enable them to carry out their functions or duties (as trade union officials, trade union members, officials of specified public bodies, employee and workforce representatives, safety representatives, pension scheme trustees, and so on). The pregnant employee likewise has a right to paid time off work for ante-natal care; and the redundant employee, paid time off to look for work or to arrange for retraining. Employees also have the right to be permitted a reasonable amount of unpaid time off work to attend to the needs of dependants; while the parents (or adoptive parents) of children under the age of five may take up to 13 weeks' unpaid parental leave. For further particulars, please turn to the sections titled Parental leave and Time off work.

Absences following maternity leave

* A new mother, who is prevented by illness or injury from returning to work after a period of ordinary or additional maternity leave, does not forfeit her right to return to work so long as she informs her employer that she is ill and produces a doctor's sick note (or a self-certificate for illness) in keeping with the usual sickness absence procedures laid down in her contract of employment. For further particulars, please turn to the section titled Maternity rights.

Zeitgeist

2009-06-14T07:27:00.000-07:00

In recent years the relationship between employer and employed has changed fundamentally and rapidly. Such change is here to stay. Zeitgeist (the 'spirit of the time') in terms of employment is encapsulated in the four or five keys words highlighted earlier. We have a required employer: employee relationship akin more to partnership than master: servant, and where the most productive and profitable partnerships are likely to be those where this requirement is positively embraced.

21st Century Partners

If partnership is to be effective it requires each 'side' to move away from confrontational attitudes and towards a realisation that mutual respect and trust may be the only way in which an improved and sustainable level of productivity and profitability can be achieved. This may be a challenge for some. A report of the Chartered Institute of Personnel & Development, 'Impact of People Management Practices on Business Performance', concludes, 'If managers wish to influence the performance of their companies, the most important area they should emphasise is the management of people. This is ironic given that our research has also demonstrated that emphasis on human resource management is one of the most neglected areas of managerial practice within organisations.'

Moving towards partnership is not simply 'a good idea' or the latest fad, it is based on economic reality. In its report 'Benchmarking the Partnership Company' (conducted by Birkbeck College and London School of Economics), the Involvement and Participation Association concluded, 'partnership pays off - organisations have a better psychological contract, there is greater trust between employees and employers and (my emphasis) PERFORMANCE IS HIGHER'. Partnership however, requires a change of attitude and poses challenges - for both parties.

Challenges for Employers

1. To Lead

The initiators of this new relationship must be management in which regard the report of the Hampel Committee on Corporate Governance provides guidance: 'Business prosperity cannot be commanded. People, teamwork, leadership, enterprise and skills are what really produce prosperity an effective board should lead and control the company.' The report does not use the word 'management' the operative word is the more positive and dynamic term 'leadership'. Managers who are real leaders are likely to motivate their teams, create real partnership and benefit from all that flows from it. As Roosevelt said 'the art of being a great leader is to get people to do what you want them to do because they want to do it'. Sadly in the UK the number of managers able to motivate their employees is relatively few - over 66% admitted in a recent survey by recruitment specialists Robert Half, that they possess only limited motivational skills.

Good motivational management LEADS. Research indicates that the majority of employees want good management/leadership and to be treated with fairness and respect. If partnership is required, leadership is essential.

2. To be Flexible

The concept that employees' personal commitments were nothing to do with their employers is no longer a sustainable view. The best performers can select the best employers, and employers that wish to retain the best employees will be those that accept the need for balance and provide assistance for their employees in coping with their personal obligations -flexibility will increasingly become the norm - if only since it is what the vast majority of employees want. Flexible hours contracts, increased time-off whether paid or unpaid, homeworking, 'cafeteria' contracts (where the employee can select the range of benefits suitable to their situation at any time), creches for both children and elderly relatives being cared for, additional facilities for 'trailing spouses' (i.e. partners of those whose employers have required them to relocate - possibly overseas), will need to be provided by employers concerned to ensure that they attract and retain the best employees.

This is probably the greatest current challenge for employers but ironically, if the experience of those that have adopted the requirement positively is to be believed, could be a source of considerably increased productivity.

3. To Foster Mutual Respect

Manager who are leaders must treat employees with respect and, above all, to listen to their views and their ideas. Thus, empowerment and brainstorming are also being used to allow employees to have a direct input into working activities. Innovative thought must be encouraged, indeed it is essential since, as management guru Peter Drucker said, 'the enterprise that does not innovate, inevitably ages and declines and in a period of rapid change such as the present, an entrepreneurial period, the decline will be fast'.

Man is a creature of habit - it is comfortable to deal with what is known, tested and habitual. But comfort does not protect let alone generate competitive edge. Creativity challenges all three habits - it forces us to think, to postulate and to theorise. Those that can do this and turn ideas into reality are successful leaders, able to motivate their teams to create the most successful organisations. In 1998, International Research Ltd conducted a survey on employee attitudes. 87% of those interviewed rated being treated with fairness and respect top of a list of preferences. The ability to perform challenging work came next (80%) with 'freedom to get on with the job' (77%) in third position.

Challenges for employees

1. To be Accountable

As partners, employees must be prepared not just to share in the benefits but also to accept the responsibilities. Whilst employees are unlikely to share in an organisations' losses, at least they must be prepared to be accountable for their own efforts - and failings. Increasingly, APPRAISAL schemes are being used to ensure that employees are made more accountable. Few schemes are as effective as they could be, mainly since it seems that few managers treat them as the spur to the future - identifying training needs and career progression. The ability to inspire people to give of their best will be essential in the fast changing economy of the 21st Century.

2. To Take Care and Give Excellence

There is a widespread attitude impression that 'second best will do'. Adoption of such a culture is an insidious drain on the search for excellence which should be the goal of all organisations that wish to survive. Whilst such attitudes manifest themselves at the sharp end with uncommitted employees, as the Chinese saying goes 'the body rots from the head'. If this is the sharp end attitude it can only reflect the attitude of senior management with an imperfect idea of what is actually taking place at the sharp end. 'The best manure is the farmer's boot' - and the best way of ensuring accountability, care and excellence is for managers to lead from the front - not from behind a desk, behind a secretary and behind a closed door.

The Initiative

The message from the foregoing is clear. If the Organisation wishes to survive, traditional attitudes, procedures and habits need to change - and keep changing. This scenario may be difficult for some to embrace. As Gary Hamel (co-author of 'Competing for the future') stated recently, 'Where are you likely to find people with least diversity of experience, the largest investment in the past and the greatest reverence for industry dogma? - at the top'. Yet it is from people at the top - and only from them - that dynamic leadership must come. The skills, experience and expertise of employees are the greatest assets of most businesses - they are at least of equal value to capital and need to be treated as 'partners', and their commitment harnessed and maximised. Management can only achieve this by creating trust. Market researchers MORI recently discovered that whilst only 11% of employees trust their bosses, 75% believe in the core values of the employers - a solid foundation for a new commitment and partnership.

One Word Guidance

This book seeks to provide practical guidance to the requirements of employers in interfacing with their employees. Many of the requirements now encapsulated in laws would be rendered unnecessary if management had only embraced the following one word guidance.
If more of those sitting behind a desk and interfacing with their employee on the other side of the desk would only ask themselves 'If this was being done to me - rather than me doing it - would I like it or would I consider it fair?' If the answer is 'yes' - it is probably OK to proceed but if the answer is 'no' - it begs the question why are you doing it? The one work guidance - and the lesson for them - is

doasyouwouldbedoneby.

Working Time Regulations

2009-06-12T04:55:00.000-07:00

Regulations derived from the EU working time regulations require employers to provide paid statutory holiday (SH) for all employees and also control the maximum hours employees are able to work (and/or work without breaks) both overall and at night.

Paid Holiday Entitlement

All employees are entitled to 4 weeks SH within each holiday year. The allocation is reduced proportionately for those who do not work the whole year (e.g. start after its commencement and/or leave before its end). Those who work part-time are similarly entitled related to the hours they actually work (i.e. if they only work 2 hours a day then a 'day's' paid holiday is 2 hours).

Where an employer grants paid holiday on a contractual basis the first 20 days (which can include paid Bank Holidays) is counted as SH. (SH is not required to be an addition to the existing entitlement, provided the latter is of at least 4 weeks duration.) If employees leave before the completion of a holiday year then the entitlement needs to be apportioned and an amount paid in respect of the balance due (less any leave taken). This is the only time that a payment can be made in lieu of SH. SH can neither be carried forward to a following year nor drawn forward from a following year.

An employee seeking to take SH must give the employer notice which is twice the length of the leave (i.e. if 5 days leave is required, 10 days notice must be given) - although these minimum notice periods can be extended if an agreement is entered into.

Employers can agree with employees that should an employee take paid holiday in excess of their entitlement, they can be required to 'repay' the excess (either by cash or additional unpaid work). An employer can, with notice, require an employee to take SH at a set time.

Coverage

Whilst the rules are fairly straightforward, problems of entitlement have emerged. It seems it is not only employees who can claim paid holiday.

Guidance re the use of 'rolled up rates' to pay for holiday is set out in HOLIDAYS.

Restrictions on Working Time

Although there are a number of types of work where derogations (exceptions) to the Regulations are allowed (e.g. doctors in training, who must be brought within the existing regulations by 2010), the armed forces, fishermen and those working at sea) generally these restrictions cover all types of work except:

managing executives;

those with autonomous decision-making powers where they can make their own decision regarding the number of hours worked (e.g. the self-employed), family employees; and

those engaged on religious activities.

Those affected must not work more than 48 hours a week (a figure which is averaged over a 17 week period - although in consultation employer and employees may agree a different period).

The figure of 48 hours is a personal one and thus it is the number of hours worked by each person in each week which is being controlled. Employers might need to know whether their employees have other employment although if employees will not disclose this, there is little they can do about it.

However, employers and employees can agree to contract out of the regulations and if so, any such agreement must be:

individually agreed (i.e. opting out of the 48 hour rule is not subject to collective bargaining or agreement);

in writing;

subject to a 3 month notice period;

backed by records identifying each employee that agreed to opt out.(The employer needs to be able to provide information of the total number of hours (subject to a two-years maximum) worked by the employee.); and

made available for inspection by inspectors of the Health & Safety Executive or other body.

Although applicants for employment could be pressurised to sign an opt out, any pressure placed upon employees to sign is illegal (and of course, once an applicant joined the employer they could give 3 months notice to stop working in excess of 48 hours. Should sanctions be imposed on any employee refusing to sign (or wishing to stop working in excess), the employee has a right of access (irrespective of service) to tribunals. A dismissal in such circumstances will be automatically unfair.

In summer 1999 the UK Government relaxed two of the rules regarding the 48 hour week limitation:

The requirement to keep records of the hours worked by those who have signed individual opt-outs is to be dropped.

Those who work more than the 48 hour limit of their own volition and without payment can do so without signing an opt-out.

Other Controls

Whilst the 48 hour limit applies to the overall number of hours to be worked in a week, there are a number of other limits which need to be observed:

Workers are entitled to 24 hours off in each 7 day period, or 48 hours off in a 14 day period.

Workers aged under 18 are entitled to 48 hours off in each 7 day period.

Workers are entitled to 11 hours consecutive rest in each 24 hour period .

Workers aged under 18 are entitled to 12 hours consecutive rest in each 24 hour period.

Night workers are limited to 8 hours work in any 24 hour period, and must be offered free health assessments both before commencing night work and regularly thereafter.

Where someone works more than 6 hours, at least a 20 minute rest break must be provided.

Those aged under 18 are entitled to a 30 minute rest break if they work more than 4.5 hours.

Where employees are engaged on monotonous work or their workrate is pre-determined (e.g. their work pattern is machine driven and they have no control over the speed of the machine) they are entitled to 'adequate rest breaks' at more frequent intervals than the above.

In the event of an emergency or force majeure, then the above limits can be ignored - as indeed in practice most of them are.

Whistleblowing

2009-06-10T05:24:00.000-07:00

The Public Interest Disclosure Act (colloquially known as the 'whistleblowing' Act) provides protection for those that report, or bring to the attention of the authorities, wrongdoing or the covering up of wrongdoing in their organisations after their internal protestations have been ignored.

Coverage

The Act has been described as a 'whistleblowers' charter, although relatively few may be able to rely on the protection it provides. It covers 'workers' - thus including employees and the self-employed, as well as agency workers and the like, and Crown servants. Protection is given to those making certain 'qualifying disclosures'. A qualifying disclosure is any information which tends in the reasonable opinion of the worker (which will be an objective test in each case) to show a relevant failure. The relevant failures include:

A criminal offence has been, is being or is likely to be committed.

A miscarriage of justice has occurred, is occurring or is likely to occur.

Someone has failed, is failing or is likely to fail to comply with a legal obligation to which they are subject.

Health and/or safety of any individual has been, is being or is likely to be endangered.

The environment has been, is being or is likely to be damaged.

Information relating to any of the above has been, is being or is likely to be deliberately concealed.

Course of Action

The first resort of a potential 'whistleblower' must be to the employer and if a qualifying disclosure is made in good faith to an employer (or some other person in the belief that they are responsible for the matter) or to a third party in accordance with a procedure authorised by the employer, then it will be a 'protected disclosure'. If the employee reasonably believes that if he discloses internally he will be subject to a detriment, or that the evidence will be concealed or destroyed, or he has previously made a similar disclosure without action, or it is reasonable for him to do so, disclosure may be made externally.

Disclosure to Regulator

Where disclosure is to be made to a regulator then not only must the matter comply with the above requirements but also the complainant must:

believe that the information is substantially correct;

believe the failure lies within the remit of the regulator; and

not be making the disclosure for personal gain.

Protection

Any clause in a contract which prohibits workers from exercising these rights is void, and any employee (there is no minimum service requirement) who suffers a detriment has a right of action. In the event of dismissal, this will be regarded as automatically unfair by a tribunal. This would include an employee on a contract lasting less than a year who has waived their rights regarding unfair dismissal. If the detriment falls short of dismissal then any employee or worker will also be able to complain to a Tribunal. Unlimited compensation - the limit for unfair dismissal does not apply to whistleblowing - can be claimed.

Whistleblowing Policy

It may be good practice for all employers to adopt a whistleblowing policy with an indication of to whom suspicions etc. should be reported.

At the time Abbey National did not have a whistleblowers policy (although all listed PLCs are now required to have such a policy) and the person who made the disclosures felt so isolated within the company that even though he was proved correct he felt he had to resign (although he later rejoined the company). Obviously, if the person disclosing wrongdoing is under pressure - whether deliberate or latent, not only are few likely to come forward, but also the purpose of the Act is lost.

Example of Policy

[As stated in its general compliance policy] [the Organisation] operates within the country's laws and regulations and expects all employees to co-operate in this by adhering to all policies and procedures.

Every employee is expected to advise [specify a named person or position] should (s)he become aware of any matter or act which seems not to be in accord with the general aim set out in 1 above. Specifically all employees are expected to make such notification immediately they become aware:

of the breaking or proposed breaking of any law or regulation by an employee of the Organisation;

of an organisation procedure or policy being broken;

of any wrongdoing;

of any matter which seems likely to harm an employee, customer, member of the public, the environment etc.; or

of any possibility or suggestion that one of the items set out in a) to d) has occurred and is being covered up.

Assuming these requirements have been met (i.e. the initial report is to [specify] rather than to an outside body), the [Organisation] undertakes to hold the employee harmless and to protect them from any personal claims and from any victimisation, harassment or bullying occasioned as a result of their acts. The aim is that the career of any notifying employee should not in anyway be harmed or hindered as a result of their act (whether the item reported proves to be true or not, provided the reporting was carried out in good faith).

The action of any employee against an employee who has made disclosure under this policy and as a result of such disclosure, whether they are affected by the disclosure or not, will be regarded as gross misconduct and subject to summary dismissal.

Anyone, including an elected safety representative who becomes aware of a hazard or dangerous occurrence is expressly required to notify [specify] before making any other report - e.g. to an outside body - not least so that immediate action can be taken if necessary to remove the hazard.

Failure to notify when reasonably aware or certain of an occurrence covered by 2 above is regarded by the Organisation as misconduct, since effectively it makes the employee an accessory. Failure to notify internally before notifying externally is usually regarded as misconduct. Only if an employee has reasonable grounds for believing that no notice will be taken of the report internally may contact be made to an outside body in the first instance.

Note
If the Organisation has a compliance officer, then it may be logical to insert the name of that person in such a clause. However, in safety reporting it may be important that a person is designated for this purpose on each site, so that urgent investigation and rectification can be implemented.

Prosecutions

In the three years since the Act came into force there have been around 1,200 cases, and around £10,000,000 has been paid in compensation. The average payment is around £100,000 and the highest amount awarded was £805,000.

Unions

2009-06-08T02:22:00.000-07:00

Organising labour via membership of Unions has been a right for over 100 years, although it was only in the 1960s that the Unions received their real power boost with the passing of a number of 'Union friendly' laws. This led to an abuse of power and to a reversal of some of those powers during the 1980s. Some of those reversals have themselves been reversed in recent years but to a great extent, the battles Unions fought have largely been won with the introduction of numerous employee rights. There were more new employee rights introduced between 1998 and 2002 than in the previous 20 years.

Commentary

Under the Employment Relations Act 1999 employers with 20 or more employees must grant automatic trade union recognition where at least 50% of those in the unit are union members. In addition, unions that have a minimum threshold of 10% of the employees in the bargaining unit and are 'more likely than not to win a ballot', can also make a claim for recognition. Recognised unions will seek to nominate a 'bargaining unit', although their nomination can be resisted by the employer and there may then be a recognition case to be decided by the Central Arbitration Committee. Being able to nominate a bargaining unit could be a powerful weapon in a Union's armoury, since if all the members of the engineering department of a factory were Union members, in the event of a dispute there would only be a need for the engineers to strike. Their absence would almost certainly mean the whole factory would need to close. The logical bargaining unit for the Union would be the Engineering Dept.

Any employee dismissed because of their participation with lawful industrial action within 8 weeks of such action, has a right of access to a Tribunal where such a dismissal will be automatically unfair and subject to up to the maximum compensation of £55,000 (Feb 2004).

Right to be Accompanied

The same Act gave to those attending a disciplinary or grievance interview 'which could result directly in the employer administering a formal warning to [the] worker or taking some other action in respect of him/her', a legal right to be accompanied by a representative and protects those acting as representatives from any sanctions. From October 2004, this right is extended so that an employee in those circumstances has a right to written details of the alleged offence 'a reasonable time' before the hearing. Under the Employment Relations Bill the rights of the person accompanying the employee are to be extended so that they can ask questions and put forward arguments (which under previous arrangements they could not do directly - only advise the employee to do so).

Discrimination

The Employment Relations Bill is to outlaw discrimination against union members by employers denying them access to benefits enjoyed by non-TU employees or making any inducements the effect of acceptance of which would be them giving up their right to be a member of a union.
Recognition

Where a Trade Union demands and is given recognition there will usually be a recognition agreement. Indeed, this is advisable since it not only sets out the basis for recognition (that is the range of items on which the Union can represent its members, for example, their pay) for the benefit of the Union, it also enables the employer to refer to the agreement if, for example, the Union wish to expand their recognition to include other matters. Traditionally, Unions tended to concentrate their efforts mainly on pay, but nowadays there is a movement to include negotiation re benefits, training, redundancy etc. In many ways setting out such arrangements in advance may avoid problems in the future. With some exceptions, Unions are more aware of the economic realities than was the case in the 1960s.

Learning Representatives

Legislation has also introduced the right for Unions to appoint Learning Representatives (ULR). ULRs have to be nominated by their Union to the employer and are expected to give advice information and encouragement about training and learning to other employees. However, each employer can formalise the manner of the provision of such advice - and set down the time allowed (with pay) for such work.

Union Members Rights

a. Shop Stewards

It is usual for employees to elect shop stewards or mothers/fathers of chapel. When elected these stewards are recognised by the Union and then become entitled to certain rights:

The right to reasonable time off with pay to carry out their normal duties on behalf of their members. The duties include matters concerning terms and conditions of employment, recruitment and non-recruitment, suspension or dismissal of members, allocation of work, discipline, membership or non-membership of a union, facilities for union officials and the mechanics of negotiation and consultation. They may also be entitled to paid time off to collect Union subscriptions. Since this can be very time-consuming many employers agree to deduct such subscriptions via the payroll on behalf of the Union. A deduction authority needs to be completed by each member. (An advantage of performing this task is that the employer knows the extent of Union membership.)

The right to reasonable time off with pay for training in those duties. This paid leave would not normally - unless covered in the Union/Employer agreement - cover visits to the local Union office, conferences etc., although allowing a reasonable amount of unpaid time off for such visits might be advisable.

The right to accompany a Union member at any disciplinary or grievance hearing.

b. Union Learning Representatives

The right to reasonable amounts of paid time off.

c. Members

The right to join (and not to join) a Union.

The right to reasonable amount of paid time off in working hours to take part in Union activities (e.g. voting on election of shops stewards, voting whether to take industrial action - but not during any such action).

A ban on any intimidation by unions or employers during statutory union recognition ballots.

Information

Employers are required to provide such information as would be necessary to enable Unions to negotiate - in other words, statistics that would facilitate meaningful discussion about the effect of wage increase demands. Under the proposals for WORKS COUNCILS (WCs) far more information would need to be provided on an ongoing basis. However, for the purposes of WCs the entire workforce must be represented, not only Union members.

New Proposals

Under the Employment Relations Bill 2003 there would be:

simplified rules regarding industrial action ballots;

employer's arguments against the selection of a bargaining unit proposed by a Union must be taken into account by the CAC;

increased protection for strikers; and

the role of the person accompanying an employee at disciplinary or grievance hearings is to be extended.

Theft | Termination Checklist—TUPE

2009-04-30T04:44:00.000-07:00

The unauthorised removal of material, assets or services from employers and abuse of their facilities is on the increase. Some estimate the losses from staff theft and fraud to be as high as 5% of sales, and this is an equivalent reduction of profit. Inevitably this problem will be worse where procedure and policing are slack.

Employee Fraud

According to the first 'Fraud Watch' report issued by accountants BDO Stoy Hayward in June 2004, employees perpetrated more than one-third of all reported fraud cases in the previous year. 84% of frauds are perpetrated by men with a median age of 44. Top cities for fraud are London, Birmingham, Glasgow and Liverpool. The authors commented that 'the majority of fraud is committed by employees and directors who know the systems and can override controls'. This pre-supposes that controls exist. In many organisations there is a considerable lack of control which can only encourage more thefts. Making the offer of a job subject to certain conditions as set out in RECRUITMENT may be one way of protecting the organisation.
Expenses

Clear rules regarding expenses are essential - including the maximum expenditure that can be claimed by each level of employee and in respect of what purposes such expenditure can be reclaimed. Stating that expenses will only be authorised for payment when supported by receipts, and/or that VAT on such expenditure will only be reimbursed if there is a VAT receipt can help raise the awareness that there is strict control of expenses. Control of company car expenditure is also essential. Employees should know that such expenses are scrutinised for 'logic' (i.e. that the cost of fuel, for example, is proportionate to mileage and model) etc. See EXPENSES.

Theft Suspicion

If an employee is suspected of theft, care must be taken in dealing with the situation and independent advice might be advisable.

Draft Checklist

Check all the facts, suggestions, evidence and record everything in writing in a logical sequence. If there are witnesses prepared to provide statements, these should be compiled and preserved.

Consider which procedures have been broken and ensure that the persons involved would have been aware of the procedures.

Establish after full investigation who seems to be responsible for the occurrence and check that the evidence seems to support the potential responsibility of the person concerned.

Interview the suspected person(s) (with an independent witness taking notes) and ask for their views and any conflicting accounts.

Re-check the witness statements to try and reconcile any differences.

Re-consider whole body of evidence and data, and attempt to assess responsibility.

The 'beyond reasonable doubt' maxim applicable in the criminal court is not required in employment law. Tribunals apply a triple test:

'Was there a full investigation of all the circumstances?'

'Did the employer genuinely believe the loss to be the responsibility of this employee?'

'Was it reasonable for the employer to apply the sanction (e.g. of dismissal)?'.

Provided the employer has carried out a full and fair investigation and has an honest belief in the guilt of the employee, any subsequent dismissal is likely to be fair - the ruling in the British Home Stores v Burchell case. Equally, if a theft could be the responsibility of two or more employees but the investigation does not disclose which, it may be fair to dismiss all suspected. However, in this case, it could be unwise to dismiss without notice since this implies that each is guilty. Legal advice should be taken.

Week No.	Net or 'attachable' earnings	Deductions under the order	Take-home pay	Arrears carried forward
1	£415	£65	£350	Nil
2	£410	£65	£340	Nil
3	£387	£62	£325	£3
4	£375	£50	£325	£18
5	£380	£55	£325	£28
6	£440	£93	£347	Nil